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Errors in the Citizenship Test, and in Criticism of the Test?

Lawprof Steven Lubet argues that there are some possible errors in Salon; the test itself is here.

The article overstates matters somewhat, it seems to me; for instance, Prof. Lubet writes:

Everyone has the right to bear arms. (This is basically wrong, and probably ideologically motivated; the Second Amendment makes it clear that the right to bear arms is connected to a "well regulated militia," and the Supreme Court has held that this right does not belong to individuals — and in any event, it is an "alienable" right, as in the case of convicted felons.)

Actually, the Supreme Court has never held that the right to bear arms doesn't belong to individuals (see here for a list of all Supreme Court cases mentioning the Second Amendment [UPDATE: Prof. Lubet tells me that he'll try to correct this in the Salon piece]); but more broadly, the question (#78) just asks people to "Name two rights of everyone living in the U.S.," and lists among the acceptable answers "Freedom of expression," "Freedom of speech," "Freedom of assembly," "Freedom to petition the government," "Freedom of worship," and "The right to bear arms." It would be basically wrong and ideologically motivated to reject the answer "The right to bear arms," given that this is an answer endorsed by a federal court of appeals, several state Supreme Courts, Congress, the Justice Department, and many serious scholars.

Similarly, it seems to me it would be rather too picky to mark a layperson down because he read "everyone" as meaning nonfelon adults. After all, even other rights aren't entirely open to everyone; for instance, prison inmates have vastly reduced free speech rights, and next to no freedom of assembly rights or Fourth Amendment rights.

It's possible to argue that, since the preceding two questions refer expressly to the rights of citizens, and this one speaks of "everyone," people should recognize that this means "everyone, including noncitizens." But the Court hasn't even made it clear that the Second Amendment is limited to citizens. (I think that it, unlike some state constitutional right to bear arms provisions, may well be limited to citizens, but this is far from open and shut.) And an exam-taker won't even see the rights-of-citizens questions next to the rights-of-everyone question, since, as Prof. Lubet says, "The actual test for any applicant includes only 10 questions, selected at random, of which six have to be answered correctly."

Maybe an exam for lawyers or law students might demand this level of care, and knowledge of which constitutional questions are open and which are more settled. But I'd say that the more ideologically neutral thing is to accept a range of acceptable opinion about the Second Amendment, and not to be hyper-picky in this context, given that I doubt that we'd endorse hyper-pickiness in other contexts.

One could argue that the flaw isn't in the government's willingness to accept the right to bear arms as an answer to the question, but rather in its listing the right to bear arms as one of the selected set of accepted answers. After all, the list of answers to that question can't be comprehensive: The right to jury trial, the right to freedom from unreasonable searches and seizures, and several other rights have to be acceptable answers, too. Perhaps the sample answers should have focused on the rights that are most clearly recognized, or had some notation noting that there's controversy about the right to bear arms.

But that's a different and milder criticism than the article makes. Moreover, it's not unreasonable, it seems to me, that the government may want to promote even a controversial view that has been repeatedly (including recently) endorsed by Congress, and that is the view of the current Administration. It may not promote this view by grading down those who disagree with it — since the contrary view is also credible, and people who take it aren't legally wrong — but as I noted, the test doesn't seem to do it.

The same can be said, I think, of some of Prof. Lubet's other criticisms (though some are more sound). For instance, he writes "A member of Congress represents all citizens in that representative's district (wrong; he or she represents all people in the district, including noncitizens)." Again, the question (#26) is "Who does a U.S. Representative represent?," and the sample answer given is "All citizens in that Representative's district (each state is divided into districts)." I wouldn't mark down someone who said "all citizens"; while a Representative is indeed generally seen as representing all his constituents, it seems to me that a test-taker — especially a layperson — can see representation as referring to those people to whom the popularly elected representative is actually accountable, and not just those whom he should in theory look out for.

Perhaps the sample answer should have said "all persons," but it doesn't follow that the test itself is wrong, unless the administrators mark down those who say "all persons" (which I highly doubt that they do). Again, if there is a quarrel to be had here, it's with the sample answer list, not with the test itself. And unless the sample answers are the only ones permissible — which would be clearly bad, but which I doubt is the case — I don't see evidence that the administration of the new test will "penaliz[e] applicants who actually understand the Constitution."

Tracy Johnson (www):
It just occurred to me that in extremis our government (Fed or State) may unalienate Felons so they can arm them in a militia! (I'm thinking along the lines of fictional "The Dirty Dozen".) Although such participants would have been under the thumb of military justice and not civil.
1.3.2007 2:00pm
Justin (mail):
Unfortunately, "nonfelon adults" do not have the right to vote, only the privilige of voting. There is no "right to vote," though there are a few constitutional amendments which limit the grounds upon which the franchise can be extended to some and not to others.
1.3.2007 2:06pm
wooga:
"the Second Amendment makes it clear that..."

Well that right there shows that whatever follows is probably wrong. Anytime a lawyer says something is "clear," it's anything but clear.

If it really was 'clear,' there would be absolutely no debate about the issue. In that case, you wouldn't even bother say 'it's clear that' - you would just omit the fact altogether, as it would be a universally accepted fact. (e.g., you wouldn't say "It's clear that the Constitution was written in the English language"). So when a lawyer uses the phrase, it's code for "If I was intellectually capable of supporting this position I would, but my gut tells me I'm right and everyone else is stupid, so I'll just say it's 'clear'."
1.3.2007 2:17pm
Eugene Volokh (www):
Justin: Given that the Court has generally interpreted the Fourteenth Amendment as requiring strict scrutiny of voting qualifications -- except those related to age, citizenship, felon status, and in some measure residency -- there is indeed a constitutional right to vote.

Indeed, the right is not quite the same as other rights, because it could be taken away wholesale as to some office: For instance, Californians could, by state constitutional amendment, change the office of state Attorney General to an appointed rather than an elected office, which would literally strip everyone of the right to vote as to that office. But that's not what we usually think about as a denial of the right to vote, partly because (I suspect) the right to vote is generally understood as the right to vote for those offices that are elective. (People rarely complain about being "denied the right to vote" for federal judges or the U.S. Attorney General, even if they might think it would be better if those offices were elective.)

And given this limitation, the right to vote for elective offices is much like other constitutional rights, and even more forcefully protected than some (since the standard of review is generally a pretty demanding form of strict scrutiny). It has limits on its scope (it isn't applicable to the young, noncitizens, nonresidents, or felons), but so do other constitutional rights; and it's in theory subject to some limitations aimed at serving compelling government interests, but so are other constitutional rights. This protection is almost certainly contrary to the original meaning of the Fourteenth Amendment, given that this Amendment itself (in section 2) contemplated state restrictions on the franchise, and tried to stop them through limitation on state representation rather than through judicial invalidation. But it is in fact what the Court has provided.

Incidentally, the Court often refers to the "right to vote"; and the Fourteenth Amendment does, too, though it can't mean a federal constitutional right that can't be denied, since it expressly contemplates a political remedy -- as I noted, corresponding limits on the representation offered the denying state -- for denial of the right.
1.3.2007 2:19pm
Guest2 (mail):

What type of economic system does the U.S. have?


Why is that question on a citizenship test? And shouldn't the correct answer be "mixed" (as opposed to "capitalist" or "free market")?
1.3.2007 2:22pm
Visitor Again:
When I took the citizenship test in early 1964, it was very informal. I sat down with a nice gentleman in his office, and he asked me three questions. One was how many branches of government there were and what are they. The second was what were the two parts of the Congress. These I answered without trouble; the questions were very simple and I was a political science major at the time.

The third was how many amendments to the U.S. Constitution there were. This I regarded as a trick question since I had just read in the newspaper that an amendment, the 24th on poll taxes, had been ratified by a sufficient number of states the day before, but I didn't know whether that meant the amendment took effect immediately or whether there had to be some kind of formal recognition by the federal government of the ratification. I said as much and the examiner gave me full credit anyway. He also told me he would not have marked me wrong had I not known of the previous day's ratification and said there were only 23 amendments.

The whole thing was very pleasant, and this examiner would not have been rigid in judging responses to his questions. I suppose things have changed. I doubt the circumstances are as comfortable for test takers today.

There should be no ambiguity on any written test, and drawing distinctions between things like citizens and people is grossly unfair. The whole point of the test should be to see if the prospective citizen has an acceptable notion of the principles of the Constitution and the structure of the government. Nothing fancy or elaborate or tricky should be required.
1.3.2007 2:23pm
Visitor Again:
Eugene, is there a right to vote for the Presidency? I think not, although I can't remember what Bush v. Gore had to say on the subject. I prepared a lawsuit to kick Nixon out of office, and as I recall, there were quite a few federal decisions holding that there was no constitutional right to vote for the Presidency.
1.3.2007 2:52pm
Allan:
Tracy,

Actually, felons can carry weapons if they are performing a federally sanctioned function, i.e., they are in the military. If that were not the case, how do you think that someone convicted of a "felony" at a General Court Martial could stay in the military.

Under federal law, the only people who can never carry firearms, i.e., there are no exceptions, are those who have been convicted of misdemeanor domestic violence offenses. So, if you want to be in the military and you want to beat your spouse, be sure to be convicted of ... that's right, a felony domestic violence offense. That, by the way, is courtesy of the Lautenburg Amendment.

For the exceptions to the rule crowd. There are exceptions to all of our rights, even in the first amendment. There have been documented cases of proper curtailment of the right to worship, the right to free speech, and the right to assemble. I am not aware of any restrictions on the right to petition, but I am sure there is a case out there.
1.3.2007 2:55pm
CJColucci:

How many natural-born citizens could answer 60% of these questions?
1.3.2007 2:57pm
Mark Field (mail):

Eugene, is there a right to vote for the Presidency? I think not, although I can't remember what Bush v. Gore had to say on the subject.


It's clear that I'm not Prof. Volokh, or wooga either, but ... From Bush v. Gore:

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College."
1.3.2007 3:07pm
Mark Field (mail):
Damn, forgot the link.
1.3.2007 3:08pm
Visitor Again:
Mark,

Thanks for helping a brother out. I just didn't feel like reading Bush v. Gore again.

It did seem to me at the time it came down that Bush v. Gore went against practically everything that earlier cases (those I ran across in preparing Cherrytree vs. Nixon) had said about federal court intervention in elections. Based on my earlier research in the Nixon case, I would have bet the house--had I one--that the U.S. Supreme Court would not have intervened in Florida. I guess I badly underestimated the political motivations of the justices in the majority and their devotion to well-established principles of judicial restraint in election matters.
1.3.2007 3:23pm
Tony2 (mail):
I find the casual use of the word "everybody" to be positively Orwellian. Whether you support it or not, simply ignoring people who have been stripped of their rights, as if they don't exist, shows just how little value is really put on those rights. Anyone who cares at all about constitutional rights thinks of those exceptions first, not as an afterthought or obscure exception that doesn't matter.
1.3.2007 3:29pm
Mark Field (mail):

I just didn't feel like reading Bush v. Gore again.


I hear that.


I would have bet the house--had I one--that the U.S. Supreme Court would not have intervened in Florida.


I do have one. Thank God I'm not a betting man, because I'd have done it too.
1.3.2007 3:54pm
Dan Palmer (mail):
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Like many others, Prof. Lubet focuses on the "well regulated militia" part of the amendment to state that the Founders did not contemplate unrestricted private ownership of guns, but only as participants in a militia. However, I believe that Prof. Lubet and these others do not understand the role militia's played in early America.

I do not believe that the Founders envisioned the US having a large permanent standing army such as we have now. I believe that they felt that private ownership of firearms was crutial because if a mass defense of the country was required, they would call on the citizenry to stand and fight. In order for these local militias to be able to quickly join the fight, they had to have their own weapons. Thus the 2nd Amendment enjoins Government from depriving private citizens of their weapons. Read David McCullough's excellent book 1776 about George Washington. Most of Washington's army was made up of locally raised militia's, not conscripted soldiers.

One can certainly put forward an argument that the large standing armed forces we currently have combined with the abililty to produce guns very quickly negates the need for an armed citizenry. However, even if that is true, the fact remains that the 2nd Amendment denies government the right to restrict gun ownership and the only way to change that is a new amendment.
1.3.2007 4:01pm
J. F. Thomas (mail):
When I took my citizenship test, it was shortly after the Supreme Court struck down the Texas anti-flag burning law. This question is a carry-over from the old test as I was asked the very same question and briefly toyed with the idea of answering "burning the flag" but decided discretion was the better part of valor, and stuck with the tried and true "freedom of speech and religion" or some other safe answer.

BTW, I am definitely pro-gun control and don't believe the second amendment bestows an individual right to bear arms (I think it is more about the founders' fear of a standing army than individual rights--for all your handwringing, the first thirteen words are there for some purpose), but it is ridiculous to nitpick that point in a citizenship test and of course someone who said "the right to bear arms" in his or her test should receive full marks (as they say in the old country).
1.3.2007 4:01pm
Eugene Volokh (www):
States may choose electors by popular election, or have them be appointed by the state legislature. (There may be other alternatives as well.) But if they choose electors by popular election -- as I believe all states have done for over a century -- the logic of the Court's right-to-vote cases suggests that any exclusion of voters (except based on minority, ex-felon status, lack of citizenship, and lack of residency) is subject to strict scrutiny. This practically means that you have a right to vote for President in any state that offers anyone (other than a legislator) the right to vote for President, unless of course you're a minor, a felon, a noncitizen, or a nonresident.
1.3.2007 4:02pm
abean:
It's interesting that he claims that the constitution 'clearly' links the 2nd amendment to the state militias. That in itself is a rather partisan position to take.

Its particularly shocking in an article that purports to be about expunging error and partisanship.

His bit about inalienable is also a bit off the mark. While it may be so that a consitution could require certain rights be retained even after due process of law, such does not make those rights inalienable. They are alienable by constitutional amendment. I seem to recall that the point of the revolution was that certain rights were inalienable--meaning beyond reproach by civil society and thus quite reasonablely referred to as rights possessed from as a consequence of birth per se.

Why was this the important distinction? Because the British parliament was the supreme law of the land therefore it was necessary to declare that certain rights were a consequence of being human--being born per se.

From this point alone, I begin to doubt this author's fairness and/or his education.
1.3.2007 4:04pm
Houston Lawyer:
It would be more correct to say that adults have these rights. They should have included the right to commit sodomy, one of our newer rights.
1.3.2007 4:08pm
BGates (www):
Lawprof Steven Lubet is correct: there are many possible errors in Salon.
1.3.2007 4:09pm
J. F. Thomas (mail):
I wouldn't mark down someone who said "all citizens"; while a Representative is indeed generally seen as representing all his constituents, it seems to me that a test-taker — especially a layperson — can see representation as referring to those people to whom the popularly elected representative is actually accountable, and not just those whom he should in theory look out for.

Well, you are dead wrong on this one and so is the test. A Representative is not "generally" seen as representing all his constituents, whether they are citizens or not. There is no "generally" about it. He represents all his constituents living in his district period, even if they are not in the country legally. Districts are apportioned based on census numbers which include all residents regardless of status, even non-voting children and non-citizen legal and undocumented aliens. As a law professor this error should bother you. Although again I think your larger point is correct and the lay person should be necessarily penalized for saying "citizen" rather than resident. But the authors of the test certainly shouldn't make such a basic mistake.
1.3.2007 4:12pm
JRL:

When I took my citizenship test, it was shortly after the Supreme Court struck down the Texas anti-flag burning law. This question is a carry-over from the old test as I was asked the very same question and briefly toyed with the idea of answering "burning the flag" but decided discretion was the better part of valor, and stuck with the tried and true "freedom of speech and religion" or some other safe answer.


It's like Apu's citizenship test on the Simpsons:

Proctor: All right, here's your last question. What was the cause of the Civil War?
Apu: Actually, there were numerous causes. Aside from the obvious schism between the abolitionists and the anti-abolitionists, there were economic factors, both domestic and inter--
Proctor: Wait, wait... just say slavery.
Apu: Slavery it is, sir.
1.3.2007 4:20pm
J. F. Thomas (mail):
It's interesting that he claims that the constitution 'clearly' links the 2nd amendment to the state militias. That in itself is a rather partisan position to take.

Not that I want to turn this into yet another debate about the 2nd amendment, but you do have ignore the first thirteen words of the amendment to not get that impression. (And yes I have read Eugene's exhaustive semantic analysis of the amendment to make the first thirteen words magically disappear. I am unimpressed.)
1.3.2007 4:20pm
Margaret Paton-Walsh (mail):
I took the citizenship test in January 2005 and from my recollection the "new" test doesn't look very different from the one I took. It was not a written test -- I was asked ten questions by the examiner and answered them orally. It was thus possible, even easy, to provide a relatively nuanced answer to a question when it seemed appropriate. It was a pretty laid-back experience frankly and not at all like an interrogation in which the examiner was trying to trick me or the type of exam where your answer has to exactly match that in front of the examiner to be marked right. Given that, I think Prof. Lubet's alleged concern about citizenship applicants who have studied too hard or understood too well is just silly. By the time you get to the examination stage in the naturalization process, the immigration bureaucrats have already pretty much signed off on you -- or so it seemed to me -- so I don't think they have any interest in tripping up applicants in the way this story seems to suggest.
1.3.2007 4:33pm
Visitor Again:
This question is a carry-over from the old test as I was asked the very same question and briefly toyed with the idea of answering "burning the flag" but decided discretion was the better part of valor, and stuck with the tried and true "freedom of speech and religion" or some other safe answer.

Yes, it is wise to remember that freedom in practice is very different from freedom in theory. Forgetting that can be quite costly. There is a time and place for everything, and free speech has practical limits when one is dependent on the mercy or the good graces of an official. When stopped by the police, for example, it is well to forget about even the most cautious exercise of free speech rights unless one is prepared to pay an exorbitant price for that exercise. Many immigrants know this well no matter what they are told about freedom and rights in the materials they read in preparation for the citizenship test.
1.3.2007 4:42pm
Jerry Mimsy (www):
I don't understand what the issue is. Doesn't the 2nd clearly state that "A well-regulated people, being necessary to the security of the state, the power of governments to keep and bear arms shall not be infringed"?

While I have heard some argue that since there are now so few well-regulated people the power should be read as non-existent, I don't understand that position. Doesn't it make the power all the more necessary?

Damn baby boomers.
1.3.2007 4:47pm
J. F. Thomas (mail):
Given that, I think Prof. Lubet's alleged concern about citizenship applicants who have studied too hard or understood too well is just silly. By the time you get to the examination stage in the naturalization process, the immigration bureaucrats have already pretty much signed off on you -- or so it seemed to me -- so I don't think they have any interest in tripping up applicants in the way this story seems to suggest.

I agree. It was very laid back. One of my questions was how many amendments there were to the constitution. I was close but not exactly right. I don't think it mattered as long as it was in the ballpark. By that time in the process they are helping you along (just like the Apu example above). I think my examiner would have laughed if I had said "burning the flag".
1.3.2007 4:49pm
Eugene Volokh (www):
The Second Amendment does at least strongly suggest that the right to bear arms is connected to a "well regulated militia" -- the right, after all, is indeed in a clause that's grammatically and semantically connected to the preamble, which mentions the militia. I certainly argue in my The Commonplace Second Amendment that the two are connected.

At the same time, this hardly shows that the right belongs to the militia -- in fact, the Second Amendment expressly says it is a "right of the people," in language quite similar to that used in the First Amendment's Petition Clause and in the Fourth Amendment. Nor does it contradict the proposition that the right is an individual right, much like the Petition Clause and Fourth Amendment secure an individual right. That too is touched on in the article I link to in the preceding paragraph.
1.3.2007 5:02pm
Visitor Again:
Eugene, you appear to have a very expansive notion of what constitutes a right. Since when has application of strict scrutiny under the equal protection clause been regarded as the equivalent of establishing a substantive right? See Skinner v. Oklahoma. To me something is not a right if its enforcement is dependent on the equal protection clause. And it's unfathomable to me that one can be said to have a right to vote if the Legislature can take away that right from everyone.

I recognize that this may be an entirely theoretical matter. It may be that under strict scrutiny examination no governmental interest would ever be found sufficiently compelling to warrant state limitation of a statutory right to vote. And it may be that the state legislature would never, in the practical world, take away the "right" to vote for presidential electors although it has the power to do so. Nonetheless, I have always regarded rights as being enforceable on their own terms (without resort to anti-discrimination principles) and as being more substantial than something that may, theoretically at least, be taken away at the whim of the legislature.
1.3.2007 5:05pm
abean:

Not that I want to turn this into yet another debate about the 2nd amendment, but you do have ignore the first thirteen words of the amendment to not get that impression.

Except that it can be interpreted as mere dicta. It gives a reason which jusifies what comes next, but by what rule of logic do you put forward to assert that it is necessarily a controlling precondition rather than being merely defensive?

I think it has to be read bearing in mind the context of Shay's rebellion. Whether or not an armed citizenry was a good idea _was_ questioned at the time of the framing of the constitution and likely the amendment would be questioned in ways that the other amendments would not be.

So this isn't a question of 'deleting' the words. Its a question of what logical structure exists between the two clauses.

Only if you then conclude that the statement is more than defensive, that it is a controlling limitation, you'll be left to ponder what the militia was--and there isn't even enough consensus to assume that is the essential question or the answer thereof.
1.3.2007 5:10pm
Visitor Again:
I think my examiner would have laughed if I had said "burning the flag".

But you weren't willing to risk saying it, were you? And I still think you were wise not to risk it.

I'm very glad to hear from at least two people that, contrary to the tone of the article, the testing process isn't much different than it was when I became a citizen in 1964, and that it's still relatively informal. I got precisely the same impression as these two, that the examiner was there to help me along if need be and certainly not about to place any obstacles in my way by resort to the arcane or to tricky distinctions.
1.3.2007 5:20pm
Glenn W. Bowen (mail):
the 2nd amendment question, I noted, was in the sample questions on line for what I believe was the old test.

the new test samples didn't contain the 2nd amendment as an option to that question.
1.3.2007 5:33pm
J. F. Thomas (mail):
I got precisely the same impression as these two, that the examiner was there to help me along if need be and certainly not about to place any obstacles in my way by resort to the arcane or to tricky distinctions.

But we both got our citizenship under the old system (I was naturalized in 1992). These are the questions for the new, written test, which has just (or maybe is about to) been implemented. It is supposed to be much tougher than the old, oral test where the examiners had almost total discretion and almost no one ever failed.
1.3.2007 5:44pm
Eugene Volokh (www):
Visitor Again: The Court repeatedly talks about a right to vote; and it is indeed a right to vote for those offices for which elections are held -- an important substantive right.

Moreover, the Constitution expressly provides for elections for Representatives and Senators, and implicitly provides that at least the most numerous branch of each state legislature be elected. As to those elections, no-one may be denied the right to vote (subject to the limitations I noted in my comment, and subject to possible trumping by strict scrutiny, which is theoretically available for many other rights).

So, yes, there is a constitutional right to vote; that it's been recognized under the Equal Protection Clause -- just as, as you pointed out, the right not to be sterilized has likewise been recognized under the Equal Protection Clause -- doesn't stop it from being a constitutional right, as the Supreme Court itself has recognized.
1.3.2007 6:07pm
Visitor Again:
But we both got our citizenship under the old system (I was naturalized in 1992). These are the questions for the new, written test, which has just (or maybe is about to) been implemented. It is supposed to be much tougher than the old, oral test where the examiners had almost total discretion and almost no one ever failed.

What's the point of making it tougher? The feds haven't said that was their purpose, have they? What they did say is that it will have a slightly different focus. In her message above Margaret Paton-Walsh says: "I took the citizenship test in January 2005 and from my recollection the 'new' test doesn't look very different from the one I took." I see that immigrant rights groups are complaining about the difficulty of the new questions, but given Margaret's judgment, I wonder if they are that much more difficult.

This is a pilot test, and one hopes the experiment will straighten out any unfairness in the questions at the very least. And if they are overly difficult, no doubt the experiment will show that, too, and appropriate modifications will be made.

What bothers me is that making it written rather than oral might produce unfairness, particularly if the questions are not free of ambiguity. Margaret says she was asked her questions orally. I don't see why the written questions cannot be asked orally with the examiner marking down the examinee's answers. That way credit would be given if the problem with the answers is that they are nuanced rather than wrong.
1.3.2007 6:12pm
Visitor Again:
So, yes, there is a constitutional right to vote; that it's been recognized under the Equal Protection Clause -- just as, as you pointed out, the right not to be sterilized has likewise been recognized under the Equal Protection Clause -- doesn't stop it from being a constitutional right, as the Supreme Court itself has recognized.

Sorry, but I am not convinced that the equal protection clause establishes any substantive right to vote and we'll have to disagree. There is no substantive right not to be sterilized established under Skinner vs. Oklahoma, which held only that unjustified discrimination in who is subjected to sterilization is prohibited by the equal protection clause. There was debate for decades over the limited nature of the holding in Skinner, focusing on its failure to hold flatly that there is a substantive right not to be sterilized. And, as the Supreme Court pointed out in Bush v. Gore, there is no right to vote for presidential electors unless the state legislature chooses that method of selecting them.
1.3.2007 6:34pm
Jay Myers:
Allan:

Actually, felons can carry weapons if they are performing a federally sanctioned function, i.e., they are in the military. If that were not the case, how do you think that someone convicted of a "felony" at a General Court Martial could stay in the military.

Felons who have served their sentences (including probation) can carry weapons if they are in the jurisdiction of a government that says they can. Not all states prohibit convicted felons from possessing firearms.

Just because someone may not have a second amendment right to bear arms does not mean that they cannot have a gun. It means that they are susceptible to laws prohibiting them from having a gun.
1.3.2007 6:50pm
Aukahe:
Even if the 2nd was limited by the militia clause, wouldn't 10 USC 311 grant most males the right to own firearms?
1.3.2007 7:03pm
J. F. Thomas (mail):
How come gun nuts also tend to be constitutional originalists or literalists but don't want read the 2nd amendment to mean "arms" as the founders understood the term--that is single shot, flintlock, muzzle loading, mostly smoothbore muskets and pistols (along with swords and pikes). Heck, if that is your reading of the 2nd amendment, I've got no problem with the individual right to bear arms, even artillery. Keep an eighteenth century cannon on your lawn to deter thieves and keep the government in line.
1.3.2007 7:21pm
Visitor Again:
I guess I badly underestimated the political motivations of the justices in the majority and their devotion to well-established principles of judicial restraint in election matters.

My reference to the majority justices in Bush v. Gore should have included the bold-faced words, as follows:

I guess I badly underestimated the political motivations of the justices in the majority and badly overestimated their devotion to well-established principles of judicial restraint in election matters.

I do wish there were a way of correcting simple errors like this one without having to post a separate message.
1.3.2007 7:26pm
Jay Myers:
Eugene Volokh:

The Second Amendment does at least strongly suggest that the right to bear arms is connected to a "well regulated militia" -- the right, after all, is indeed in a clause that's grammatically and semantically connected to the preamble, which mentions the militia. I certainly argue in my The Commonplace Second Amendment that the two are connected.

Well of course the second amendment is connected to the idea of a "well regulated militia". The militia was every able-bodied man between 14 and 45 and would be unable to do their duty if disarmed. The amendment states that a militia is "necessary to the security of a free State" even though defense against exterior threats could accomplished just as well by a standing army and navy. The statements of many Founders, including people of widely disparate political positions such as Hamilton, Jefferson, and Madison, indicates that they believed that it was essential that the people retain the means to overthrow the government if it became unresponsive to their guidance as the British government had been. It seems silly to suggest that the militia should depend upon the government for its arms or be solely a creature of the government when the government was explicitly considered a potential opponent of the militia. An armed citizenry is part of the checks and balances that the Founders built into our system of government.
1.3.2007 7:28pm
Eugene Volokh (www):
J.F. Thomas: For the same reason that originalists don't read "freedom ... of the press" as limited to 18th-century printing technology, "commerce" as limited to commerce using 18th-century transportation technology, or "houses" (as in the Fourth Amendment) to exclude skyscrapers. Originalism calls for applying the original meaning of a legal provision -- not for limiting that provision to technological devices that existed at the time the provision was written.
1.3.2007 7:58pm
Roger Schlafly (www):
Why all the discussion about whether the 2A right is an individual or collective right, or whether the right is related to the militia?

The question was just to name some rights. The right to bear arms is some sort of right no matter what interpretation you use, so it is a legitimate answer to the question.
1.3.2007 8:08pm
John McCall (mail):
How come gun nuts also tend to be constitutional originalists or literalists but don't want read the 2nd amendment to mean "arms" as the founders understood the term--that is single shot, flintlock, muzzle loading, mostly smoothbore muskets and pistols (along with swords and pikes). Heck, if that is your reading of the 2nd amendment, I've got no problem with the individual right to bear arms, even artillery. Keep an eighteenth century cannon on your lawn to deter thieves and keep the government in line.


Similarly, we should recognize that all constitutional references to the people refer only to citizens of the United States alive in 1789, because words capture purely extrinsic semantics and can in no way carry intrinsic, generalizable significance.

I regret bothering to read the original Salon article; it devolved very quickly into cheap political point-scoring, and no amount of political sympathy could persuade me to grant the author any credibility after that. I remember Salon being worthwhile three or four years ago; I hope this is just an aberration, but I wouldn't be surprised if it weren't — the internet has never been a trustworthy maintainer of rhetorical poise.
1.3.2007 8:14pm
Paul B:
People who worry about whether a Represnetative represents the citizens or the people of his district should spend less time in the law library and more listening to rock and roll. As Jerry Neil Capehart and Eddie Cochran said in 1958's classic (and controlling opinion), Summertime Blues, "I'd like to help you son but you're too young to vote."

Of course, Capehart wrote the lyrics in 45 minutes, proving that he would have been totally unsuited for a profession that bills by the hour.
1.3.2007 8:23pm
Pub Editor (mail):
Some commenters are focused on the word "militia" in the subordinate clause of the Second Amendment. For the record, 10 U.S.C. sec. 311 defines the "militia of the United States":


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


Discussing the original meaning or understanding of the term militia, Prof. Akhil Reed Amar of Yale Law says:

The states'-rights reading puts great weight on the word militia, but this word appears only in the amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the states. As the language of the Tenth Amendment shows, these two are of course not identical: when the Constitution means "states," it says so. Thus, as noted above, "the people" at the core of the Second Amendment are the same people at the heart of the Preamble and the First Amendment....

What's more, the "militia," as used in the amendment and in clause 16 [of Article I, section 8], had a very different meaning two hundred years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but two hundred years ago, any band of paid, semiprofessional, part-time volunteers, like today's Guard, would have been called "a select corps" or "select militia"--and viewed in mnay quarters as little better than a standing army. In 1789, when used without any qualifying adjective, "the militia" referred to all citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection--the "militia" is identical to "the people" in the core sense described above.

Amar, THE BILL OF RIGHTS (1998), p. 51 (all empheses in orginal).
1.3.2007 8:48pm
Elliot Reed:
By far the biggest problem with the test is that none of the questions concern the Marque and Reprisal Clause.
1.3.2007 10:39pm
J. F. Thomas (mail):
Originalism calls for applying the original meaning of a legal provision -- not for limiting that provision to technological devices that existed at the time the provision was written.

Originalism calls for applying the meaning of what the originalist thinks the original meaning of the legal provision is. Justice Thomas has gone so far as to argue that the 5th amendment should be read as to prohibit only what was cruel and unusual punishment in 1789. If he has a problem with evolving standards of decency why shouldn't he have a problem with evolving firearms or transportation technology?

And your argument rings kind of hollow since the libertarian argument is constantly that "the constitution never envisioned the regulation of . . ."

Some commenters are focused on the word "militia" in the subordinate clause of the Second Amendment. For the record, 10 U.S.C. sec. 311 defines the "militia of the United States":

The day someone gets arrested for refusing to muster when called up for duty for the unorganized militia is the day I will believe this law is anything but a meaningless, obscure, completely unenforceable, and invalid section of the USC.
1.3.2007 11:36pm
juris_imprudent (mail):
JF Thomas

And your argument rings kind of hollow since the libertarian argument is constantly that "the constitution never envisioned the regulation of . . ."

Bull. The argument is that the regulation of X is not authorized under any of the powers granted to Congress. There is a solution to that besides not regulating (which the libertarians generally would prefer) - amend the Constitution. But damn if the govt-expansionists aren't loathe to suggest doing so. Why is that do you suppose?

Also I think Justice Thomas knows his 8th Amdt from the 5th.

Finally, it is the militia that is the dependent clause. It doesn't make much sense to have a militia if you deny people the right to the arms with which they were to bear in mustering. When gun control proponents will admit there is an individual right to keep and bear arms, then you might get some cooperation on what the bounds of that right are. Deny the existance of the right and you have an entirely different arguement.
1.4.2007 1:00am
ReaderY:
It's very clear that not everyone living in the U.S. has a right to keep and bear arms. Only the people have a right to keep and bear arms, just only the people have a right to security in their persons, papers, and effects under the Fourth Amendment, to peacably assemble and petition their government under the First, and only they have unenumerated rights. The Supreme Court defined "the people" and explained the list of rights which apply to "the people" in United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990),
1.4.2007 2:52am
ReaderY:
If "arms" means only muzzle-loading rifles, wouldn't the "press" mean only material produced by a manual process of impression, excluding not just the internet but material produced with automated presses?

These sorts of straw arguments waste time. The distinction between relatively straightforward extensions of constitutional language "press" to the internet and the like -- versus stretches like "Due Process" to "abortion". There are a lot of intermediate cases, like extending "speech" and "press" to dramatic presentations. But accepting modest imperfections in language and limited extensions to clearly related concepts is legitimate. The world contains no logical box trapping us into the straw alternatives accepting either muzzle-loaded "arms" and a mechanical "press" only or accepting every judge's wildest flight of fancy and fantasy as constitutionally legitimate. And obviously the boundary between these two extremes is inexact and involves shades of gray.

Justice Holmes noted that there is no exact line between night and day -- there are only shades of gray and twilight -- yet the lack of exactitude doesn't make the distinction between the two useless and claims that the distinction is illegitimate are useless logic-chopping. This strikes me as a similarly specious argument.
1.4.2007 3:03am
Visitor Again:
A little research shows that the equal protection clause guarantees not a substantive right to vote but merely the right to equal treatment once the right to vote has been otherwise established by state law.

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35 n. 78 (1973) (emphasis supplied), the Court noted that:


Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population. See n. 74, supra.



At note 74 (emphasis supplied), the Court said:


Dunn [Dunn v. Blumstein, 405 U.S. 330 (1972)] fully canvasses this Court's voting rights cases, and explains that


this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.


405 U.S. at 336 (emphasis supplied). The constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted, even though, as the Court noted in Harper v. Virginia Bd. of Elections, 383 U.S. at 665, "the right to vote in state elections is nowhere expressly mentioned." See Oregon v. Mitchell, 400 U.S. at 135, 138-44 (DOUGLAS, J.), 229, 241-242 (BRENNAN, WHITE, and MARSHALL, JJ.); Bullock v. Carter, 405 U.S. at 140-144; Kramer v. Union School District, 395 U.S. 621, 625-630 (1969); Williams v. Rhodes, 393 U.S. 23, 29, 30-31 (1968); Reynolds v. Sims, 377 U.S. 533, 554-562 (1964); Gray v. Sanders, 372 U.S. 368, 379-381 (1963).



In his concurring opinion in San Antonio, Justice Stewart said:


Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties. [n2] The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.



411 U.S. at 59. In his footnote 2 (emphasis supplied), he wrote:


There is one notable exception to the above statement: it has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533; Kramer v. Union School District, 395 U.S. 621; Dunn v. Blumstein, 405 U.S. 330, 336. But there is no constitutional right to vote, as such. Minor v. Happersett, 21 Wall. 162. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary.


This view is even narrower with respect to presidential elections. In Bush v. Gore, 531 U.S. 98, 104-05 (2000) (per curiam)(emphasis supplied), the Court majority noted:


The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
1.4.2007 8:56am
Fury:
As a note, state militias exist in many states (example here). In most cases, this is volunteer service.
1.4.2007 10:36am
Mark Field (mail):

Justice Holmes noted that there is no exact line between night and day -- there are only shades of gray and twilight -- yet the lack of exactitude doesn't make the distinction between the two useless and claims that the distinction is illegitimate are useless logic-chopping.


Holmes? Because Edmund Burke said something very similar: "But, though no man can draw a stroke between the confines of day and night, yet light and darkness are upon the whole tolerably distinguishable." Thoughts on the Present Discontents.

Visitor Again, nice job on the citations. That is my understanding of the law also.
1.4.2007 11:37am
Pickwickian (mail) (www):
All citizens or only existing citizens ?
All citizens or only US citizens ?

Questions like How many branches of government are there ?
(Federal, State, Local; Article I,II,III; former/retired, nominal, shadow; etc).

are better asked as 'In Montesquieu's taxonomy of federal government, how many and what are they?'.
1.6.2007 9:55pm