Posts Tagged ‘second amendment’

A Constitutional Right to Shoot People?

July 17, 2008

At the Volokh Conspiracy, Eugene Volokh and Orin Kerr are discussing whether DC v. Heller establishes a “Constitutional Right to Self-Defense.” I’m with Professor Kerr on this one: it doesn’t. My opinion is of course completely uninformed, but when the experts disagree, why shouldn’t the rest of us chime in?

In the Court’s opinion Justice Scalia certainly does talk at length about self-defense. But I don’t think he quite gets to the point of saying there is a Constitutional right to self-defense. I see it coming up in two different contexts, in two different sets of arguments.

The first is in Scalia’s discussion of the phrase “keep and bear arms,” and whether it had an exclusively military meaning, “to serve in an army or militia” or whatnot. Here Scalia seems to be arguing along these lines:

  • There are instances of the phrase “bear arms” explicitly meaning “have weapons for self-defense.”
  • “Self-defense” is not “serving in the military.”
  • Hence “bear arms” does not necessarily mean “to serve in the military.”

Now I disagree with this on a couple of counts, but that’s not important now; my point is that it has nothing to do with any Constitutional right to self-defense. The rest of Scalia’s self-defense references are more relevant. He cites a number of mostly 19th-century sources interpreting the second amendment as “protect[ing] an individuals right to use arms for self-defense.” And his opinion’s first holding is,

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

I can certainly see how someone might find a “Constitutional right to self-defense” there. But I don’t think that’s right. Scalia isn’t justifying a right to self-defense, he’s assuming one. Applying something like his own logic re the Prefatory Clause, I interpret the holding as meaning, “The 2A protects a right to use firearms for traditionally lawful purposes,” with the note that one of those traditionally lawful purposes is self-defense.

That may seem silly, but consider another “traditionally lawful purpose,” hunting. Much of the older precedent Scalia cites re self-defense applies equally well to hunting, but I don’t see anyone attempting to find a Constitutional right to hunt in his opinion. There are all sorts of laws restricting hunting, which doubtless annoy hunters, but which as far as I know are Constitutionally uncontroversial. One could argue that DC could put more restrictions on the storage of .30-06s than on handguns, elk-hunting not being a lawful purpose in the city itself.

And I don’t see much in Scalia’s opinion about what exactly a right to self-defense might entail. Presumably it would include shooting someone breaking into your home. But what else? Will someone interpret Heller as guaranteeing a right to concealed carry, so you can shoot muggers on the street? (I’m sure someone will, actually.) Can you shoot an attacker if running away is an option? How much discretion do states an municipalities have to regulate the right? In Texas it’s apparently acceptable to shoot suspicious-looking people in your neighbor’s yard; I doubt that would fly in Massachusetts. If there is a Constitutional right, it’s not very well-codified. (See also Jack Balkin for much better-informed commentary on the subject.)

Now if a self-defense case actually reached the Supreme Court I’m fairly sure Scalia would find a right to it, based on tradition and common law and precedent and other extra-Constitutional sources—not every right is a Constitutional right! He might even find one in the penumbras he generally so despises (it wouldn’t be the first time…). But he hasn’t quite done that yet.


Guns, Guns, Guns!

June 27, 2008

Everything that can be said about DC v. Heller was probably said yesterday, and will probably be said again today, so I’m not sure why I’m bothering with this post. That said:

First off, I am neither enormously pleased nor enormously disappointed with the decision—I’m a flaming liberal, but I also like guns, so my gut reaction to the actual result averages out to “meh.” I’m more interested in the argument itself, and in the spectacle of 157 pages of opinions (on top of untold volumes of academic articles and polemics and amicus briefs and—shudder—blog posts) trying to make sense of one short sentence.

I agree completely with Publius that Scalia and Steven’s dueling opinions, both allegedly originalist, are a great argument against originalism. In this case (as, I imagine, in many other less angry-making ones) I don’t see any reason to think there was any original intent—my takeaway from the existence of more explicit drafts of the 2A was that the result was a compromise specifically intended not to settle issues just like this—and insofar as there was one it’s no longer meaningful, being inextricably grounded in long-since abandoned notions, e.g. that standing armies are bad, that militias composed of more or less all able-bodied men are good, and that those able-bodied men are responsible for providing their own guns. The question “WWJD?”—What Would James Madison Do?—has no answer.

So what we get is, as Jack Balkin writes, “living constitutionalism” pretending to be “originalism.” Actually, I’d be less kind than Professor Balkin: what we get is Justices’ personal preferences pretending to be the results of impartial originalist reasoning. And of course Justices make lousy historians, cherry-picking only the bits that support their (necessarily ahistorical, see above) positions from a large, ambiguous, and confusing historical record. As Sandy Levinson writes:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia.

DC v. Heller

March 18, 2008

Oral argument in DC v. Heller is today. Exciting stuff indeed! My prediction is that there will be a splintered decision, with the four “conservative” justices voting (possibly in several opinions, including a very short one from Justice Thomas) to let the appellate decision stand, the four “liberals” voting to remand, possibly with a range of instructions across several more opinions, and Kennedy endorsing something like the Solicitor General’s position (the moderation and sense of which has so offended the Administration), only more pompously; the result being 5-4 in favor of remanding, with muddy instructions to the lower courts.

I’ll see if I change that after the argument, or more precisely after I see what more intelligent and better informed people have to say about it.

UPDATE: No new thoughts, but a question: what happens if a majority (Kennedy and the liberals) decide to remand (but for different reasons), and a different majority (Kennedy and the conservatives) find an Individual Right to bear arms (but draw different conclusions from that finding)?  What precedent does that set?

Historians on the Second Amendment, cont.

February 13, 2008

I’ve read, or rather skimmed slightly more thoroughly than previously, the two aforementioned historians’ briefs in DC v Heller. And I revise more former pro-DC-side judgment: my sympathies are now with neither.

What struck me most was how similar the bulk of the two briefs were. Both discuss at length the history of the second amendment and its antecedents in the context of the lively discussion of militias and standing armies; lots of good detail in both. They “merely” draw different conclusions from that context: one that the second amendment guarantees that the federal government could not allow the militias to languish unarmed or underarmed, the other that the second amendment guarantees an individual right as a mechanism to an end (the militias again), and that the right survives even if the purpose does not. (I am of course oversimplifying, especially as regards the pro-gun brief, which also discusses “bearing arms” as a civic virtue. And I’m sure I’m missing important points).

I draw neither conclusion; as I’ve said before I think the result of the history is an interpretive mess. For at least two reasons: first, the fact that the major premise in the militia cluase no longer holds (decided, as some wag noted, in the case of North v South, 1865); and second, that the actual text was the result of much discussion and compromise–I have to assume that the Framers were no more unified in their views of the particulars of the 2A as any set of politicians are on anything, and the records cited by both briefs seem to me to support that. The current discussion of individual versus collective rights is, in my view, at best a feeble attempt to make sense of the history, and at worst an impediment to understanding it.

Historians on the Second Amendment

February 12, 2008

Among lots and lots and lots of amici briefs in DC v Heller are “pro-individual-rights” and “pro-militia-interpretation” briefs from opposing sets of historians. Haven’t read them yet, but they look interesting. From what little I’ve skimmed, my sympathies are with the militia one, not surprisingly.  A couple of quotes:

As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?

What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.

Linguists on the Second Amendment

January 17, 2008

Here‘s an amicus brief in DC v Heller from a few linguists (via Language Log). An few excepts:

…On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate “a well regulated Militia.”

…In the case of the Second Amendment, we have shown that the absolute clause affirmatively states the cause or reason for the Second Amendment’s existence. That significantly affects the meaning of the main clause, for it gives us every reason to think that this Amendment never would have been adopted but for the fact that the Framers believed the absolute clause’s statement that a well regulated militia is necessary to the security of a free state. And if we know why a provision is adopted, we surely know something about the intended scope of that provision. The Second Amendment’s absolute construction was adopted as an integral part of the Amendment, and it cannot be “omitted” or wished away by trying to show that it no longer is true.

…The term “bear arms” is an idiom that means to serve as a soldier, do military service, fight. To “bear arms against” means “to be engaged in hostilities with.” The word “arms” itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term “bear arms” (or “bearing arms” or “bear arms against”) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense.

Now I really can’t evaluate this; I’ve seen the exact opposite arguments made, both about the import of the first clause and about the meaning of the idiom “keep and bear arms.” I do tend to think that a 39-page paper on a single sentence is at least a potential sign of over-analysis (and of course this is far from the only, or the longest, such.)

But certainly that first clause is there for a reason; it’s a statement about an important assumption the framers made. The framers did not trust standing armies, and specifically tried to make it a little difficult for the young United States to have one (see the army clause in article I, section 8 of the Constitution: army appropriations can be for no longer than two years. There is no such restriction on the navy). Without a standing army, a well-regulated militia was very much necessary for the security of the new free state.

We no longer think this. We’ve had a large standing army since the Civil War. We no longer need to keep guns over our hearths to rise in defense of our beloved homeland. Much as we all enjoyed Red Dawn, that’s just not going to happen.

So what does that mean for The Second Amendment Today? How do you interpret something whose explicitly stated purpose is no longer meaningful? I’ve no idea. I suppose it depends on theories of legal interpretation, a subject that makes me queasy(*). I think either side can be argued equally reasonably. Or unreasonably.

In practice, of course, the interpretative debate boils down to endless political maneuvering and litigation. All these linguistic and historical analyses, fascinating and perceptive though they may be, are virtually irrelevant in themselves; they’re just so much grist for the political and legal mills. Debates like this are won, insofar as they are ever resolved at all, not by academic argument but by winning elections and appointing sympathetic judges.

Oh well, at least it’s entertaining.

(*) I’m pretty cynical about anything that depends on a particular interpretive theory. It’s too easy to choose a theory, or bend an existing theory, to get whatever result you want. No slight on our nation’s Judges/Justices and politicians and whatnot, it’s just human nature.

DOJ annoys EVERYONE in gun control case

January 14, 2008

The Department of Justice’s amicus brief in DC v. Heller, as I understand it (and IANAL), maintains that the Second Amendment secures an individual right, while also maintaining that said right is not absolute; and recommends the case be remanded to the lower court.  That is, the DOJ likes the “conservative” individual-rights interpretation of the second amendment, but doesn’t like absolute limits on the government’s authority.  I think that the DOJ, or at least Paul Clement, objects not to the result (overturning DC’s gun ban) but to the reasoning, and thinks the gun ban would fail under the lower level of scrutiny they recommend (see here). But I really don’t know, and that is not the point of the brief, which as I read it is more concerned with what precedents the case will set.

It pleases me that this rather reasonable position (I’m not saying whether I agree with it, just that it’s reasonable, much as it surprises me to say that any part of the current administration can be reasonable) has so angered the pro-gun people. (But note the NRA’s response is more measured.)

I’m now curious about i) what the liberals will say (if anything; this may be too moderate to inspire any entertaining liberal outrage), and ii) what effect this will have on Republican presidential politics.  Will all the candidates have to condemn this brief, with their fingers crossed behind their backs?

A Well-Regulated Militia, …

December 17, 2007

I have to agree with Eugene Volokh’s take on Adam Freedman’s NY Times op-ed piece, but it does give me a chance to rant a bit about the Second Amendment and its discontents.

An argument that may be implicit in Volokh’s post, and is at least half-explicit in Instapundit’s post on the same article, is that the framers wanted to ensure that the People would be able to overthrow, or at least resist, the government if such should become necessary.  That’s a standard argument among anti-gun-control partisans, and it’s one I’ve never really believed.  (I’m pretty sure George Washington wouldn’t have believed it either.)  What I DO believe is that the founders didn’t trust large standing armies, which could in their experience all too easily become instruments of tyranny.  Hence the reliance on the militias, hence “a well-regulated militia being necessary for the security of a free state.”

We of course no longer feel that way about standing armies.  The Recent Unpleasantness Between the Sections and subsequent unpleasantnesses have changed our minds pretty completely.  The assumptions that went into the framing of the Second Amendment are no longer at all applicable.  This creates a bit of a challenge for interpreting it, if I can understate the case a bit.

While I’m on the topic, I’ll also mention that I think the framing of the debate about the Second Amendment as one of “Individual” vs “Collective” rights has been a brilliant strategy by the anti-gun-control forces.  I don’t buy that framework either, and I don’t think it has much to do with the way the framers thought about it, but once the argument is framed that way the Individual Rights case really does seem stronger.