Publius makes the case for Article V and Federalism
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.
March 26th, 2008 at 8:27 am
I am quite enjoying John Adams. I find the issues they are discussing totally relevant to current events today. I know some do not like Giamatti, but I think he captures the Admas mix of brilliance and irritability (to himself and others around him) well. Did you catch the look of disgust by Adams when he is sitting next to some cats in the French court in “Don’t Tread On Me?” I agree Laura Linney is amazing as Abigail.
My main criticism is the pacing. The first episode went slowly, the second seemed to hit the right speed, but the third (even with some great scenes) jumped too quickly ahead.
March 26th, 2008 at 8:54 am
My main criticism is the pacing. The first episode went slowly, the second seemed to hit the right speed, but the third (even with some great scenes) jumped too quickly ahead.
And don’t forget the fact that the children all stayed the same age somehow between the Boston Massacre and the end of the Revolutionary War. Did they ever feed those kids? But other than that, it is excellent.
Oh, and as for the main point of Feddie’s post: well said.
March 26th, 2008 at 9:27 am
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-rights 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?
Then one would expect the City of Washington to need to show a compelling interest.
Does this mean that I and other citizens have a constitutional right to form a militia like those that existed during the colonial age?
This is a questionable claim. Given the rampant post-modernism, one has difficulty conceding the right to form militias because even McVeigh considered himself a part of one, and it is unclear to me that this is necessarily what you mean. If we are speaking of organizations organized for public order, then yes a militia may be the proper term. In most places, sheriffs departments have obviated the need for militias. In many places, the sheriff’s departments have the rights of militias in times of disorder. We aren’t likely to breech that point again.
One independent of the State hierarchy or its control?
If by State you mean the federal government, than yes. If by State you mean the given States, than probably still yes, although again this has generally been assumed by sheriff’s departments.
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?
One can have an individual right to guns (although I don’t believe the second ammendment is addressing hunting and “fishing”) and recognize there are other rights. Local governments are in fact duty bound to provide public order. This argument is no better than a first ammendment absolutist arguing that slander is a protected right.
March 26th, 2008 at 10:10 am
I’ve responded.
On the Adams series, the best character by far is Jefferson. I love the way they portray him as this aloof awkward weirdo guy. It’s pretty funny
March 26th, 2008 at 11:22 am
absolutely you could form local militia groups - that’s the whole point.
March 26th, 2008 at 11:42 am
Feddie,
Once again you have simply nailed it. I can offer nothing to what you have already said beyond a hearty “Well Done, Sir!!!”
Regarding this Adams series on HBO I guess I should check it out. However, for me that is easier said than done. The more I read about John Adams the more I simply don’t like him. He strikes me as an arrogant, pretentious, self righteous, intellectual snob possessed of more pique than character. His insistence on parading around wearing a ceremonial sword when he never served in the military in any capacity, as well as his other aristocratic pretensions, betray an unflattering vanity on his part. His support for the Alien & Sedition Acts displayed a real tendency toward tyranny. His single term of office was more notable for its passing than for any accomplishments.
All the recent interest in John Adams is confusing since there were so many other more interesting characters among the founding fathers. Compared to George Washington John Adams was a mouse of a man.
March 26th, 2008 at 12:14 pm
Publius-
Well, cool beans then. I suppose I should go ahead an order up a whole mess of grenade launchers and AK47s for my militia.
Gotta update the equipment, you know.
March 26th, 2008 at 12:15 pm
I suppose the shorter version of what I wrote is that I second Judge Karen Lecraft Henderson’s dissent.
March 26th, 2008 at 12:15 pm
joel - first, hello. good to “see” you again
that’s one reason why the adams series and the book is so ggod - it shows that adams was far more interesting than people think. more human
March 26th, 2008 at 12:16 pm
MZ-
Then you would be wrong.
March 26th, 2008 at 12:28 pm
“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.”
I realize that is a statement of principle, and a deeply held and well-reasoned one at that. But you must admit that it makes you sound a little like one of those tax protesters who doesn’t believe the income tax is legal. You can believe whatever you want about what the law is, as long as you obey the version that the courts and police think is the right one, whether it sprang from a misguided reading of the constitution or not.
March 26th, 2008 at 12:29 pm
He strikes me as an arrogant, pretentious, self righteous, intellectual snob
He was. But he was also a brilliant and courageous political leader who had greater insights into human nature and political theory than just about any of his contemporaries.
March 26th, 2008 at 12:33 pm
Muskrat-
Unlike tax protesters, I accept the reality that the Supreme Court has strayed far from the Constitution’s original meaning. And I fight every day to restore that document to its previous, and original, meaning.
But, as you know, I am no Roy Moore. I believe in working within the rule of law to bring the restoration I seek about. That’s what presidential elections and judicial appointments are all about, my friend.
Now, if I am ever appointed to the SCOTUS . . . well, all bets are off. SDIFS! and all that jazz.
March 26th, 2008 at 12:36 pm
Publius,
It is good to see you as well. I must admit that I have missed you your input into these discussions.
You are probably right (about the Adams series). I should probably give it a try.
Feddie,
Let me know when your militia stands up. FWIW, I would go with civilian model of the M-14.
March 26th, 2008 at 12:38 pm
Joel-
You will most certainly be consulted on such matters.
March 26th, 2008 at 12:41 pm
Paul
“He was. But he was also a brilliant and courageous political leader who had greater insights into human nature and political theory than just about any of his contemporaries.”
Greater than Madison? John Randolph of Roanoke? I disagree.
I am sure John Adams would have agreed with your opinion of his abilities.
Personally, I would take George Washington over John Adams any day of the week.
March 26th, 2008 at 12:45 pm
Joel-
And I would take Lee over Washington.
March 26th, 2008 at 12:59 pm
Greater than Madison?
No, but it’s close.
John Randolph of Roanoke?
Yes, but it’s also close.
Personally, I would take George Washington over John Adams any day of the week.
As a President and statesman, absolutely. As a theorist, well that wasn’t Washington’s thing, so it’s not really fair to compare.
And by praising Adams, don’t take me as denigrating any of the other greats of his generation. I would rank him with Madison and Hamilton as one of the three greatest minds of his generation (TJ had a great mind, he was just wrong).
March 26th, 2008 at 1:35 pm
I cannot say how great it is to see Publius back at the law blogging game, or to see you two have another of your great discussions. Too bad Feddie has to always be right :P.
I am going to start tuning into to Adams on your recommendation, and have weighed in on the original meaning of the second amendment over at my blog.
March 26th, 2008 at 1:46 pm
RULES OF ENGAGEMENT
Paul,
Fair points. I should probably be fairer to Mr. Adams than I have been.
Feddie,
Although I love Lee, I am more of a Stonewall Jackson man myself.
March 26th, 2008 at 1:48 pm
Joel-
You know how much I admire Stonewall Jackson.
Heck, I named my son after him.
March 26th, 2008 at 1:49 pm
OOPS. Please disregard the “RULES OF ENGAGEMENT” in my last post. That is part of a future post intended for Grim’s Hall
March 26th, 2008 at 1:50 pm
Feddie,
You have impeccable taste.
March 26th, 2008 at 5:20 pm
Let’s just interpret the Second Amendment the same way we interpret the Seventh: you have the right to bear the arms that wer in existence at the time of ratification (just as you have a jury trial right in those causes of action for which a jury trial right was recognized at the time of ratification).
It’d certainly solve the concern that ruling in favor of an individual rights approach would invalidate the federal machine gun ban.