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Lithwick on Heller:

Dahlia Lithwik writes that the case is (potentially) about "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe."

Except, of course, that there is no federalism issue in Heller, because the gun law at issue is D.C. law, which for constitutional purposes is considered part of the federal government.

Admittedly, if the Justices recognize an individual constitutional right to bear arms, this right will likely be "incorporated" against the states under the Fourteenth Amendment. There are many flaws in the incorporation doctrine as it currently exists, not least the undefended (and indefensible, in my opinion) assumption that the scope of rights protected under the original Bill of Rights and the 14th Amendment are necessarily the same, even though the meaning of such rights in public discourse may have changed dramatically between 1791 and 1868, and even though the states have a police power, and the federal government does not.

But surely it would be problematic to refuse to enforce a federal right against a part of the federal government just because the incorporation doctrine suggests that the right will have to enforced in exactly the same way against the states. If that is indeed a problem, it's a problem with incorporation (essentially invented by the liberal Warren Court, though that is a very long and complicated subject), and not the current majority's fealty to federalism.

pedens:
"the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe."

Give me a break, this happens everytime liberals lose before the Supreme Court or realize they're going to lose they play the "It's the end of civilization as we know it" card.

The Courts are not going to go and declare that no citizen has a right to own a firearm.

This lady is about as worse as Linda Greenhouse she once wrote a piece in Slate claiming the Chief Justice was a woman hater over previous memos he wrote critical of the Equal Rights Amdt. when he was working in the White House and something he wrote when he was still in High School.
3.19.2008 4:32pm
Zathras (mail):
...incorporation (essentially invented by the liberal Warren Court, though that is a very long and complicated subject)...

Incorporation was going on in full force before Warren reached the Supreme Court, and in some cases even before FDR had any judges on the bench. It's not a "long and complicated subject."

Establishment of Religion: Everson v. Board of Education, 330 U.S. 1 (1947).

Free Exercise of Religion: Cantwell v. Connecticut, 310 U.S. 296 (1940).

Freedom of Speech: Gitlow v. New York, 268 U.S. 652 (1925).

Freedom of the press: Near v. Minnesota, 283 U.S. 697 (1931).

Freedom of assembly: DeJonge v. Oregon, 299 U.S. 353 (1937).
3.19.2008 4:34pm
gattsuru (mail) (www):
If that is indeed a problem, it's a problem with incorporation (essentially invented by the liberal Warren Court, though that is a very long and complicated subject), and not the current majority's fealty to federalism.


More precisely, it was first created in the article IV Comity Clause, ignored by the lack of any real judicial capability for the start of the Republic, recreated (relatively legitimately for a post-Civil War amendment) created in 1868, uninvented by poor judicial understanding of the Slaughterhouse Cases in 1873 and on, until it was partially rerecognized by a very tortured suggestion by the 1897 and really defined properly by the 1925 courts.

But just as general liberalism does not require liberals to take its fundamentals to the point of ignoring their legal requirements or the rights of others (albeit rare for such a thing to be recognized), federalism does not require one to presume an entirely 'hands-off' federal government, especially when other pre-stated obligations (originalism, human rights) intervene.
3.19.2008 4:35pm
Zathras (mail):
One other thing about incorporation: it is possible (although by no means certain) that the militia phrase, as it explicitly refers to militia as being benefiting a state, would mean that incorporation may not occur with the 2nd Amendment.
3.19.2008 4:37pm
what about pakistan:
In my opinion, it's hard to read the equal protection clause per Randy Barnett in conjunction with Section V and not see a creation of a federal police power.
3.19.2008 4:38pm
Tobias:
Heard a rumor that Lithwick was going to replace Greenhouse at the Times. Anyone know if there is any truth to that?
3.19.2008 4:40pm
Kevin P. (mail):
Lithwick is of course a dishonest hack. It truly amazes me that she is so popular. Perhaps it is because she oozes large quantities of British-like sneer that some people like to get on their hands and knees and lap up.

In particular:

After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right.


A new constitutional right? The right to keep and bear arms predates the constitution itself!

I wish she would go back to Canada and sneer at us from there.
3.19.2008 4:42pm
Wayne Jarvis:
Yawn. Lithwick is nothing more than a snarksmith. She's never met a strawman that wasn't absurd and offensive.
3.19.2008 4:42pm
NaG (mail):
Lithwick's analytical abilities falter when she has a belief in the proper outcome of the case.

I tune out when I hear those on the left crowing for "judicial restraint" when they venerate the Warren Court -- surely the most unrestrained Court in history. Good for me, not for thee.

It was quite interesting when Dellinger started talking about "penumbras." I was hoping that Gura would take the podium and argue that while self-defense is not mentioned in the 2d Amendment, surely it's in the "penumbras" of the right. It's not like abortion, which is a right that was found lurking in a penumbra of the emanation of "privacy." This is first-string penumbra-ville.
3.19.2008 4:44pm
jim47:
Zathras: the militia phrase certainly means you can't incorporate the 2nd amendment jot-for-jot against the states, since the states can control the militia, but jot-for-jot isn't the only way. The reconstructors talked about incorporating a right to bear arms that they intimately associated with the right of self defense. Personally, I think it is most proper to reverse-incorporate that later understanding when construing the 2nd amendment today.
3.19.2008 4:44pm
Job:
"One other thing about incorporation: it is possible (although by no means certain) that the militia phrase, as it explicitly refers to militia as being benefiting a state, would mean that incorporation may not occur with the 2nd Amendment."

If the Supreme Court holds that the 2A guarantees an individual right to hunting and self defense not tied to militia membership (and, based on oral argument, Kennedy at least appears to believe the two are not linked together), then I think the argument against incorporation becomes very difficult. If it's an individual right against the federal government available to citizens in general, then how on Earth does it not become incorporated via the 14th Amendment?

I'm sure everyone on the Court is well aware of what a definitive individual rights holding means for a future incorporation case. The Court may state that it's not considering incorporation in this case (which is true), but there really is no other logical follow-up decision if the Court rules as expected.
3.19.2008 4:47pm
ruralcounsel (mail) (www):
About what you'd expect from a liberal female urban reporter. Full of the "Yuck, it's an icky gun" quasi-logic. (Sorry 'bout the sexist remark, but despite some wonderful counterexamples, I think we'd be denying reality to think there isn't a big difference in how men and women view weaponry, on average.)

She repeats most of the poorly reasoned liberal logic of the past 20 or 30 years of anti-gun legal scholars, as if somehow it might stick this time.

What I found interesting was Dellinger's assertion that he could get a gunlock off in 3 seconds. If we had any really practical jurists, they'd have ripped him apart for that. Let's see him pop up out a sound sleep in the middle of the night, with sounds of someone breaking through a door or window, frightened spouse and/or kids congregating around him and (1) find his weapon, (2) load the weapon (I figure anyone who puts a gunlock on a defensive weapon probably won't keep it loaded, but I'm willing to concede that one if necessary), and engage the safety, (3) find his key or recall his combination, (4) get the lock unlocked, (5) get the damn thing out of the trigger housing, in 3 seconds. What a liar!

And since by DC law as I understand it, he isn't even supposed to have it ... Ridiculous.
3.19.2008 4:51pm
Matty G:
Nice post, David.
3.19.2008 4:54pm
gattsuru (mail) (www):
One other thing about incorporation: it is possible (although by no means certain) that the militia phrase, as it explicitly refers to militia as being benefiting a state, would mean that incorporation may not occur with the 2nd Amendment.


The separate rights (that of the militia and that of the right to keep and bear arms) can be recognized and incorporated without regard to each other; that was actually the case for most of the 1st amendment, which took a good 22 years to get the first four freedoms and protection from establishment of religion in place, and a further 11 years to get freedom of assembly incorporated. If one part can be incorporated and another part not, that's well within the court's power.

The relevant cases, Cruikshank and Presser, occurred before modern incorporation theory, and thus make it rather difficult to provide a meaningful analysis, but they suggest that the militia clause would not exactly be an issue.
3.19.2008 4:55pm
Kevin P. (mail):
There is plenty of good information and law available that shows that the Fourteenth Amendment clearly intended to protect the right to keep and bear arms against the states, particularly newly freed slaves.
3.19.2008 4:55pm
T.J. Hooker:
Ah, Dahlia Lithwick - always ready with answers to questions no one asked, while spinning legalist viewpoints generally out of phase with common sense and reality. Her deft snarkmanship is palatable only in small and very infrequent doses, lest one put oneself in danger of severe intestinal distress.
3.19.2008 4:55pm
Ak:
Lithwick's columns have degenerated into utter unreadability over the past few years. It's literally like she has some sort of cliche liberal reaction generator she uses to ghostwrite her columns for. On the infrequent occasion I bother to read them I can guarantee I know what she'll say about everything, including the standard jabs at particular justices for being blind hypocrites (a.k.a. not agreeing with Dahlia Lithwick).
3.19.2008 4:56pm
Kevin P. (mail):
The Chief Justice made fun of the trigger lock issue:


CHIEF JUSTICE ROBERTS: So then you turn on the lamp, you pick up your reading glasses --
(Laughter.)


Dellinger lied about the non-existent exemption for self-defense in the DC law as well.
3.19.2008 4:58pm
DavidBernstein (mail):
Zat, cases in which the court recognized that a right protected by the First Amendment was also protected by the 14th is not the same as "incorporation." It's often said, for example, that the Court "incorporated" the Takings Clause in 1897, but if you read the relevant opinion, you will see that the Takings Clause is never mentioned. Similarly, off the top of my head, the Gitlow majority said it assumes that freedom of speech is protected by the 14th Amendment, but not because of the First Amendment, which I don't think is even mentioned.
3.19.2008 5:08pm
hawkins:
Seriously, the amount of bitching about the liberal media needs to stop. It is really quite pathetic.
3.19.2008 5:09pm
Temp Guest (mail):
DL doesn't like guns. DL doesn't like conservatives. DL isn't too good at logical argument but attempts to hide this with pseudo-oxbridge diction. Mildly irritating and completely un-illuminating.

If DC has an interest in banning handguns because the District believes this lessens the likelihood of violence then the District should be able to demonstrate that banning handguns has had this effect. The District cannot do this since violent crime in the District began a precipitous rise almost immediately after the hand gun ban was imposed. DC's violent crime rates have remained high even while those of neighboring areas with far more liberal gun regulations experienced consistently lower -- and declining -- rates of violent crime. [And how I loved naturally using "liberal" in its uncorrupted sense in the last sentence.]
3.19.2008 5:11pm
Paul Milligan (mail) (www):
The entire DC case is based on lies from start to finish, and Lithwick is just another nutburger swearing to it.
3.19.2008 5:14pm
Job:
It truly amazes me that she is so popular.

Same here. Her recaps of oral arguments frequently fail to hone in on the real legal issues before the Court. She comes across as bitter and mean-spirited. Frankly, she reminds me a lot of Ann Coulter in the sense that she occasionally makes a decent point but usually just resorts to a bunch of hateful garbage and off-topic rambling.
3.19.2008 5:17pm
Job:
"hone in on" should be "home in on". Dang typo.
3.19.2008 5:19pm
Bama 1L:
So is Professor Bernstein saying that, given a 2d Amendment individual right to bear arms for self-defense and hunting (as opposed to overthrowing tyrants), SCOTUS would in a future case incorporate that right against the states or would find an unenumerated Due Process right?

I think you might indeed have three rights:

1. 2d Amendment Militia Clause prevents federal government disarming state governments. Largely obsolete, since state governments aren't very interested in maintaining militias. This obviously can't be incorporated against the states.

2. 2d Amendment "Keep and Bear Arms" Clause prevents federal government disarming citizens of weapons they have for the purpose of resisting tyranny. This is a fun idea, but about as likely to be enforced as various state constitutional rights to revolt. This can be incorporated against the states.

3. Unenumerated but historically-recognized "Guns for Self-Defense and Hunting" Right found under 14th Amendment Due Process analysis prevents any government depriving citizens of weapons kept for these traditional purposes, but is probably subject to rationality review.
3.19.2008 5:25pm
Kevin P. (mail):
Dahlia Lithwick, the Ann Coulter of lefty lawyers... LOL. Actually, quite an appropriate comparison.
3.19.2008 5:26pm
alias:
I don't know what you're all talking about. Lithwick's snark is awesome.

She's totally wrong about the Roberts court, and as someone else said, her columns aren't quite as good when she has a view about the correct outcome of the case, but I usually find that her analysis is many times better than what Greenhouse, Liptak, et al. serve up, and her wit is unsurpassed.

Prof. Bernstein might be right about the federalism thing, but after Bolling v. Sharpe it seems that "D.C." and "state" are interchangeable when it comes to constitutional rights, no matter how dubious the underlying logic is. It's a picky point.
3.19.2008 5:35pm
Wayne Jarvis:
Snark is not "awesome."

But if you find that snark awesome, Lithwick is no doubt your own personal Spicoli.
3.19.2008 5:49pm
Archon (mail):
I love the hypocrisy of liberals...

"You should have the constitutional right to kill an unborn baby"

"You don't have a constitutional right to kill a fellow human in self-defense."
3.19.2008 5:57pm
Kukulkan (mail):
Ruralcounsel:

If you haven't already, you really should read the transcript, it's a hoot. CJ Roberts asked Dellinger how many minutes it takes to unlock and load a gun. Dellinger responded that DC's law does not require a gun to be trigger-locked and unloaded. The statute in question provides "each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device." Dellinger argued that the law required a gun to be either (1) disassembled and unloaded; or (2) trigger locked (but not necessarily unloaded). While I agree that the statute can be interpreted in the manner Dellinger suggested, I strongly doubt that is how the District or its citizens would have interpreted the law in any other case. I think that it is hilarious that DC's counsel, maintained that (1) there is an unwritten exemption allowing guns to be assembled and used for self defense (despite case law where District residents were prosecuted for using a firearm for self defense); and (2) that the trigger lock statute should be interpreted narrowly. This is a jurisdiction which has banned the possession of handguns and banned the carrying of a concealable weapon in one's own home, and he's advocating that the District's trigger lock law be interpreted narrowly?
3.19.2008 5:59pm
jrose:
Lithwick makes a good point that we have an activist role-reversal.

Assume the Court rules there is an individual Second Amendment right that is eventually incorporated. Courts will be left drawing the lines that the elected branches cannot cross.

Conservatives all of sudden like this notion and liberals howl about it.
3.19.2008 6:04pm
Clayton E. Cramer (mail) (www):

1. 2d Amendment Militia Clause prevents federal government disarming state governments. Largely obsolete, since state governments aren't very interested in maintaining militias. This obviously can't be incorporated against the states.
See Houston v. Moore (1820). The majority opinion by Justice Bushrod Washington, Justice Johnson's concurring opinion, and Justice Story's dissent all come to the same conclusion: the only powers that the states enjoy with respect to the militia are those identified in Art. I, sec. 8. NONE of them believed that the Second Amendment changed the relationship--and Justice Story even explicitly mentioned the Second Amendment.
3.19.2008 6:16pm
Clayton E. Cramer (mail) (www):

Assume the Court rules there is an individual Second Amendment right that is eventually incorporated. Courts will be left drawing the lines that the elected branches cannot cross.
The difference is that in this case, there is an explicit guarantee of an individual right--not one that is (at best) implied.
3.19.2008 6:17pm
Roger Schlafly (www):
Lithwick's previous article said the 1939 Miller case determined that the 2A did not confer an individual right. No, that is not correct. That case had more to do with whether a sawed-off shotgun had military use.
3.19.2008 6:36pm
matt (mail):
I fully expect that the supreme court, in a hypothetical case relying on 14th-incorporation of the 2nd to strike down a state law, would refuse to grant cert. Assuming, as is likely, the case involved a criminal rather than a sympathetic Heller-type.

At least until the inevitable circuit splits have a chance to fester for a few decades.

-m@
3.19.2008 6:38pm
Bored Lawyer:

the incorporation doctrine suggests that the right will have to enforced in exactly the same way against the states.


Is this always true? I know generally that rights are construed the same whether they are against the federal govt. or the States, but IIRC there are a few exceptions.

Of the top of my head:

Grand Jury -- no federal right as against the states

Civil Jury -- states can have non-unanimous juries in civil cases, and different numbers than in federal cases

Criminal juries -- I vaguely recall something about a difference between the two in federal and state courts. I think it is the number.

Anyway, it would be worthwhile cataloging the few occassions where they are different.
3.19.2008 6:39pm
Tony Tutins (mail):
If DC has an interest in banning handguns because the District believes this lessens the likelihood of violence then the District should be able to demonstrate that banning handguns has had this effect. The District cannot do this since violent crime in the District began a precipitous rise almost immediately after the hand gun ban was imposed.

I believe the DC statute would still survive traditional rational basis review, even though the law made the problem worse instead of better.
3.19.2008 6:55pm
theobromophile (www):
This might have been mentioned upthread, but Blackstone discussed two important, and independent, functions of the right to keep and bear arms (sorry for importing our own Constitutional language into his; I cannot, off the top of my head, recall his exact phrasing): those of defence of the country (against tyrants or invaders) and for self-defence.

IIRC, the Second Amendment was crafted in part because of the massive disarming of the English populace that occurred in the mid-seventeenth century - not far in the past, all things considered. It was a provision meant to apply against the federal government, although many states had similar provisions in their own Bills of Rights, several of which predated the Constitution. It would hardly be an intrusion upon federalist principles to enforce the Bill of Rights against the federal government.

At any rate, strict constructionist principles would lead one to be very skeptical of federal bans on gun ownership, possession, and use. (As I've said before, no one looks at the first part of Art. I, Sec. 8, Cl. 8 when determining the validity of patents!)

"Judicial modesty" does not mean, necessarily, that one cannot find legislation to be unconstitutional. It simply means that a judge ought to look to the document itself to determine whether or not the legislation should be struck down.

An interesting test: if the argument were about an unsettled area of law dealing with legislation which severely curtailed the free speech rights of atheists, would Ms. Lithwick have the same response to conservatives who would strike down the law?
3.19.2008 7:09pm
Kazinski:
Tony,

I believe the DC statute would still survive traditional rational basis review, even though the law made the problem worse instead of better.


This seems to be the standard that Dillinger and Breyer want to apply, but I thought rational basis was the standard for regulation that legislatures are empowered to do. I had no idea that it was the standard abrogating constitutional rights the legislature is explicitly denied authority to infringe.
3.19.2008 7:12pm
illspirit (www):
I would think the first half of the Amendment could be incorporated just as easily as the latter. Given that Congress has almost plenary authority over the militia, it kind of already is "incorporated," in a sense. I.E., the States can't make it illegal to register with Selective Services, or otherwise declare their citizens ineligible for the militia. Likewise, while Governors of the several States retain most control over their National Guard units during peacetime, they can't exactly ban the National Guard, can they?
3.19.2008 7:18pm
Alan K. Henderson (mail) (www):
Lithwick makes a good point that we have an activist role-reversal.
There is no role reversal. Activism is making a ruling that runs contrary to the context of the Constitution. All activism will draw "lines that the elected branches cannot cross," but not all such line-drawing is activism. The Third Amendment draws such lines, for instance, but a decision that acknowledges that it does indeed exist within the Constitution would not be activism. Neither would a decision recognizing the existence of the latter half of the Second Amendment.
3.19.2008 7:18pm
Hank Williams:
her wit is unsurpassed.

Which begs the Lithwick motto, then, I suppose, "why subscribe to logic when you can resort to wit instead?"

Given most states have abdicated any actual militia role, what would it take to start a state "militia"? Could individual state citizens, contingent of course on the provisions of their state constitutions, sua sponte proclaim that they are starting their own "insert state name here militia" because their state has abdicated its historic role and petition their state governor to appoint officers?
3.19.2008 7:20pm
Elais:
Archon,

Abortion is not murder. Just thought I'd let you know the facts.
3.19.2008 7:43pm
Kukulkan (mail):
Elais:

Archon did not state that abortion is murder.
3.19.2008 7:48pm
alias:
Which begs the Lithwick motto, then, I suppose, "why subscribe to logic when you can resort to wit instead?"

Oh, please. Her style is 100 times better than the rest of the Supreme Court press corps, and people are getting bent out of shape because her substance is only above average for that crew. As I've said, sometimes her analysis falters when she feels strongly about a case, but it's often quite good. One of my favorite Lithwick columns is this one about bifurcating the guilt and sentencing phases of criminal trials.

The main reason I like to read her columns is that they provide a humorous yet accurate description of how the oral argument went. And she knows the substance well enough to understand why the Justices ask the questions they do, why the lawyers give the responses they do, and what the case is about... in other words, she knows at least enough to tell a good story and to provide useful information. If I'm looking for pure humorless substance on the Supreme Court cases, I go the blogs written by practitioners and lawprofs.

I'm amazed that people are so intolerant of levity when it comes to the Second Amendment, yet apparently willing to spew snark about nearly every other aspect of the Court's business. Lighten up, or at least save your venom for the real hacks.
3.19.2008 7:48pm
mollyrogers (mail):
Nick Szabo has a good argument that the Bill of Rights would be enforced far less against the federal government were it not for the incorporation and same-scope doctrines. His theory seems to be borne out by the actual history -- before the incorporation doctrine, even though there were far more restrictions on the federal than the state governments in the original Constitution and Bill of Rights, the Supreme Court overturned state laws far more often than federal laws. The Bill of Rights was used far less against the federal government than it has been since the dawn of the incorporation doctrine.
3.19.2008 8:06pm
PersonFromPorlock:
Elais:

Abortion is not murder. Just thought I'd let you know the facts.

True, but it's arguably homicide, a point which its defenders ignore. Not that I'm against homicide, necessarily, but let's not kid ourselves that 'exposing' a fetus and exposing a baby are very much different, or that the former is the moral equivalent having a pimple removed.
3.19.2008 8:23pm
Thales (mail) (www):
"You don't have a constitutional right to kill a fellow human in self-defense"

Did anyone actually make this argument?
3.19.2008 9:33pm
A.J. in NJ:
Throughout this whole case I've seen various questions regarding the militia. What I haven't seen, but what I think is relevant, is that the founders recognized two forms of the militia. The 'Select' militia was the formal organized group that the States appoint the Officers of, and which has a formal structure. This appears to be the group that everyone has been dancing around during these arguments. The "other" militia understanding was THE (general) militia. The (general) militia was simply the population that was armed. A pool of potential combatants that could spontaneously form up if needed. These were the same folks that resisted the British at Lexington and Concord. They have no formal chain of command, and are essentially the neighbors grabbing their guns and working in concert in an emergency. Not unlike an old time fire brigade. Before formal fire departments existed, if the neighbors' house was on fire, everyone grabbed their bucket and pitched in to help put out the fire. Under this understanding of the militia, it still exists today and would be destroyed by disarming the general populace. (For an example, think of the Korean grocers during the Rodney King Riots). I believe this is the militia referred to in the 2nd, not the select militia.

A.J.
3.19.2008 9:39pm
TomJackson (mail):
David Bernstein—your response to Zathras seems very incomplete. While Gittlow in 1925 is somewhat ambiguous about "incorporation," neither Cantwell (1940) nor Everson (1947) are—and both precede the "Warren" Court. Cantwell states "[t]he fundamental concept of liberty embodied in [the 14th] Amendment embraces the liberties guaranteed by the First Amendment"—and that in 1940. Everson notes Cantwell and its interpretation "to make the prohibitions of the First applicable to state action abridging religious freedom" and continues "[t]here is every reason to give the same application and broad interpretation of the 'establishment of religion' clause."

Thus, "incorporation" via the 14th Amendment was well underway before the Warren Court. Indeed, it is perhaps most easy to criticize "incorporation" because of its use of the "due process" clause (as John Ely liked to note). But there is also significant historical evidence that the "privileges or immunities" clause was originally designed to serve this function. John Bingham, who framed privileges or immunities, pointed to the privileges and immunities clause of Article IV as his model—i.e., an idea of "fundamental" rights under Corfield v. Coryell, including the first eight amendments (albeit with a stretch for "establishment"--and perhaps others). And that same evidence suggests the privileges or immunities language of the 14th Amendment was designed to overrule Barron v. Baltimore. All this was upended by the Slaughterhouse Cases, which sent "privileges or immunities" to the back-burner, at least until Sanez v Roe. History might have been a lot kinder towards incorporation if incorporation had proceeded under privileges or immunities rather than under due process--but it makes the story of "incorporation" a whole lot more complicated (as does Cantwell, frankly) than fobbing it off as an "invention" of the Warren Court.
3.19.2008 9:49pm
M. Slonecker (mail):

As I've said before, no one looks at the first part of Art. I, Sec. 8, Cl. 8 when determining the validity of patents!


You may want to take a look at Graham v. John Deere and its approving citation to the concurring opinion in Great A. &P. Tea Co. v. Supermarket Equipment Corp.

It seems that the USSC gives a unique construct to Article 1, Section 8, Clause 8. I can only wonder how many of the early patents signed off on by Thomas Jefferson the USSC would characterize as silly trifles?
3.19.2008 10:15pm
Michael J.Z. Mannheimer (mail):
mollyrogers,

As George Thomas III shows in his brilliant article, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145(2001), Szabo has it exactly backwards. Before incorporation, the Bill of Rights was applied much more robustly against the federal government than it is against the States or the federal government today. Thomas' thesis is that the Supreme Court was quite willing to view the Bill of Rights as establishing a high hurdle for the prosecution of, e.g., gamblers, bootleggers, and those who would transport women across State lines for immoral purposes. But after incorporation, the Supreme Court -- yes, even the Warren Court -- did not have the stomach to set so high a hurdle for the prosecution of garden-variety murderers, rapists, and robbers. So, as Justice Harlan presciently predicted, incorporation has resulted in a watered down version of the Bill of Rights to be applied to the States. And since it applies in the same way to the federal government, our protections against that entity are far less robust than they once were. Meanwhile, those once robust protections are needed now more than ever as the over-federalization of crime continues unabated.
3.19.2008 10:29pm
MS (mail):
Prof. Bernstein,

I'd reurge what Tom Jackson said, and add that your point seems especially weak with respect to the second amendment, where there is a very strong argument that guns were a "privileges or immunities" of citizenship.
3.19.2008 10:47pm
theobromophile (www):
That case [Miller] had more to do with whether a sawed-off shotgun had military use.

Yes, and more so! The defence didn't even brief that part before the Supreme Court. The Court only said, IIRC, that it could not take judicial notice of whether or not a sawed-off shotgun had military use.

I think it's hard to get from there to "the Second Amendment only expresses a collective right."
3.19.2008 11:21pm
mollyrogers (mail):
Michael Mannheimer: Before incorporation, the Bill of Rights was applied much more robustly against the federal government than it is against the States or the federal government today.

Sorry, but it is this claim that is backwards. As the graphs showing number of reviews and voidings of Congressional legislation here indicate, there was a major phase change in Supreme Court judicial review about 1958, five years into the Warren Court. Prior to that time, the Supreme Court was highly deferential to Congress, despite a large number of statutes that would be considered blatantly unconstitutional today. Since the late 1950s the Supreme Court has nullified the majority of statutes that it has reviewed, a radical change from earlier practice. This phase change coincided with the rising use of the Bill of Rights against the states via the incorporation doctrine.
3.19.2008 11:31pm
JKeyes (mail):
Incorporation of the Second might well take the lines expressed by the Court in Presser v. Illinois. The Court opined that "even leaving the Second Amendment out of view" the states couldn't ban firearms because that would deprive the national government of the resource of an armed citizenry.
3.19.2008 11:35pm
federal farmer (www):
David,
I'm curious about this "original Bill of Rights." Was there a new one or a modification that I am not aware of?
3.19.2008 11:40pm
Clayton E. Cramer (mail) (www):

True, but it's arguably homicide, a point which its defenders ignore. Not that I'm against homicide, necessarily, but let's not kid ourselves that 'exposing' a fetus and exposing a baby are very much different, or that the former is the moral equivalent having a pimple removed.
California law, for example, exempts therapeutic abortions as part of the law that makes it a criminal homicide.
3.19.2008 11:49pm
Michael J.Z. Mannheimer (mail):
mollyrogers,

These data tell us very little about the world of criminal procedure. When the Supreme Court applies the criminal procedure protections of the Bill of Rights, it almost never declares a federal or State statute unconstitutional. It instead typically addresses the constitutionality of the actions taken by State and federal actors other than legislators, such as law enforcement agents, prosecutors, and judges. So, data about the rates at which the Supreme Court has declared unconstitutional acts of Congress or State legislatures are quite beside the point. They do not support your original, broad claim that "the Bill of Rights would be enforced far less against the federal government were it not for the incorporation and same-scope doctrines."
3.19.2008 11:54pm
theobromophile (www):
I'll add a bit to Michael J.Z. Mannheimer's post: the times when the Supreme Court invalidates a legislative act in the criminal law arena relates, most often (I imagine) to Eighth Amendment jurisprudence. That is just a guess, but it is the most likely area of legislation that would result in a challenge to its constitutional validity.

Speedy trial, due process, double jeopardy (rarely an issue, IIRC), search &seizure, and confrontation of witnesses tend to be very fact-specific areas of the law. Arguably, there could be some suits against takings legislation, or confrontation of witnesses (for example, if legislation were to allow child rape victims to testify via monitor so as to not have to look at their assailant), but those would be the minority of cases.
3.20.2008 12:07am
DavidBernstein (mail):
TomJackson: There is nothing "ambiguous" about Gitlow, it's not an incorporation case, the only Justice who arguably believed in incorporation up to this time was Justice Harlan. The language you cite from Cantwell is not incorporation language, it's language stating that the rights protected by the First Amendment are also protected by the 14th, which is different than saying that they are protected by the 14th BECAUSE they are protected by the 1st. Cantwell is ambiguious, but ultimately Roberts seems to consider it a 14th Amendment case, not a 1st.

I'll grant you Everson, but it's already 1947, and Black is of course a prominent member of the Warren Court that then proceeds to incorporate most of the rest of the BofR, without much of a coherent idea as to what it was doing, given that it didn't adopt Black total incorporation theory.
3.20.2008 12:13am
DavidBernstein (mail):
And p.s.: I recognize that there may be separate grounds for finding an independent right to keep and bear arms protected by the 14th Amendment, but finding that there is a right under the 2nd doesn't inherently resolve that issue.
3.20.2008 12:15am
David E. Young (mail) (www):
For jim47:

There is no reason why the Second Amendment, which protects an individual right, cannot be incorporated against the states just because "a well regulated militia" and the reference to "state" appear within it.

After all, the Second Amendment was developed from state declaration of rights language limiting state governments, and that is exactly where the well regulated militia and free state language of the Second Amendment originated. There seem to be many who are not paying attention to the extensive historical details actually available today.

Once again, I post the URL for the History News Network article tearing apart the professional historians' pro-DC amicus brief:

http://hnn.us/articles/47238.html
3.20.2008 12:28am
mollyrogers (mail):
Michael Mannheimer: These data tell us very little about the world of criminal procedure.

Since when did executive acts in one area, criminal procedure, become a more important measure of federal power than Congressional legislation in all subject areas combined? And even if that's the case, can you cite data showing that nullifications of federal executive acts have declined since the 1950s? The idea that the Warren and Burger Courts showed more deference to the federal government than prior courts on criminal procedure strikes me as so contradictory to the cases and histories I've read that it faces a high burden of proof, with some data to back it up, not just some opinionating about a few cases in a law review article.

theobromophile: the First Amendment is the most common source in the Bill of Rights for voiding Congressional legislation, followed by criminal procedure and a broad "civil rights" catch-all category, according to the data.
3.20.2008 12:44am
MS (mail):
Professor Berstein:

I recognize that there may be separate grounds for finding an independent right to keep and bear arms protected by the 14th Amendment, but finding that there is a right under the 2nd doesn't inherently resolve that issue.



The ability to think about something intimately related to something else, without thinking about that to which it is related. :)
3.20.2008 12:50am
juris_imprudent (mail):
Hank asks

Could individual state citizens, contingent of course on the provisions of their state constitutions, sua sponte proclaim that they are starting their own "insert state name here militia" because their state has abdicated its historic role and petition their state governor to appoint officers?


No. The Continental Army, and the militia, were answerable to civil authority - be it Congress, a Governor, etc. If you want an active state militia, without concurrent National Guard enrollment, you need your state govt to establish such. And it can. But you have to get the body politic to support it.
3.20.2008 1:12am
Zathras (mail):
DB: There is nothing "ambiguous" about Gitlow, it's not an incorporation case, the only Justice who arguably believed in incorporation up to this time was Justice Harlan.

This is incorrect, as Brandeis was also on the Court at the time, and he certainly was a strong advocate of incorporation.
3.20.2008 1:16am
Tony Tutins (mail):
Justice Harlan... Brandeis was also on the Court at the time

??? Didn't Brandeis replace Harlan?
3.20.2008 1:43am
Michael J.Z. Mannheimer (mail):
mollyrogers,

I never made the broad (and unprovable) claim that "executive acts in one area, criminal procedure, become a more important measure of federal power than Congressional legislation in all subject areas combined." I simply refuted your broad claim that "the Bill of Rights would be enforced far less against the federal government were it not for the incorporation and same-scope doctrines." I did so by citing an extraordinarily well-researched article published in one of the top few law journals in the nation by a leading expert in constitutional criminal procedure. I commend you to read it.

You have cited an article purporting to show that the Supreme Court began striking down federal statutes with vigor beginning in about 1958. But this article does not address at all the rate at which the Court has struck down state statutes at any time during its history. To support your broad claim, you must rely on a blog post that contains no citations. There is thus no way to determine whether the post-1958 trend was caused by the incorporation in earnest of the Bill of Rights that began shortly after that date. That is, of course, a possibility. But that the two correlate does not mean that one caused the other, any more than one can state with confidence that the post-1958 trend was caused by the Dodgers leaving Brooklyn.
3.20.2008 1:44am
davidbernstein (mail):
I'd (sincerely) like to see evidence that Brandeis was an advocate of incorporation. In Gitlow, he concurred with g Holmes' view that the freedom of speech applied to the states only "in view of the scope that has been given to the word 'liberty' as there used," and moreover, "perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." Doesn't sound at all like what we now consider the incoroporation doctrine.
3.20.2008 2:43am
Jagermeister:
IIRC, there was no defense presented at Miller, which is how the idea that sawed off shotguns have no military use came to be accepted, and how a falsehood became enshrined in law.

Regarding Dellinger's parsing of the D.C. law, I'm still trying to comprehend a gun that can be kept loaded while disassembled. Absent a few tubular magazines, it's hard to do, and a pretty good way to have a ND (negligent discharge) while reassembling it. I just don't see how you'd keep the cartridges in a revolver, a break action shotgun, or most bolt action rifles, while disassembled. I think the phrasing of the law is indicative of a hopolophobe (to use Jeff Cooper's term).
3.20.2008 4:31am
Zathras (mail):
DB: Here is the last paragraph in Brandeis's dissent in Gilbert v. Minnesota, 254 U.S. 325 (1920):

As the Minnesota statute is in my opinion invalid because it interferes with federal functions and with the right of a citizen of the United States to discuss them, I see no occasion to consider whether it violates also the Fourteenth Amendment. But I have difficulty in believing that the liberty guaranteed by the Constitution, which has been held to protect against state denial the right of an employer to discriminate against a workman because he is a member of a trade union, Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960, the right of a business man to conduct a private employment agency, Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973, or to contract outside the state for insurance of his property, Allgeyer v. Louisiana, 165 U. S. 578, 589, 17 Sup. Ct. 427, 41 L. Ed. 832, although the Legislature deems it inimical to the public welfare, does not include liberty to teach, either in the privacy of the home or publicly, the doctrine of pacifism; so long, at least, as Congress has not declared that the public safety demands its suppression. I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.

This is not spelled out perfectly clear, but I think this has the original idea of incorporation.
3.20.2008 10:00am
DiverDan (mail):
Why is it that so many people don't get the comedy of Dahlia Lithwith -- She's the Stephen Colbert of the Left. Just as Colbert plays a farcical right-wing nut job for laughs, Lithwick plays a farcical Left-Wing Loony for laughs. At least, that's the way it seems; surely, nobody really takes her seriously as a Journalist or Commentator, do they?
3.20.2008 11:21am
DavidBernstein (mail):
Sorry, I see that Brandeis is advocating the freedom of expression be protected by the Due Process Clause just like liberty of contract, but I don't see any sign that he's advocating "incorporation," as such--he doesn't even mention the First Amendment.
3.20.2008 11:28am
TomJackson (mail):
While I understand David Bernstein's point about Cantwell, to me it is less a question about "incorporation" as how something is incorporated. Cantwell used "liberty," others used "due process," Black--who wasn't very clear most of the time--ultimately seemed to settle on "privileges or immunities." Most of the concept of "selective" incorporation is how something gets applied to the states via the 14th Amendment, such as Cardozo's discussion in Palko: "We reach a diffferent plane of social and moral values when we pass to [those guarantees of the Bill of Rights] brought within the [14th Amendment] by a process of absorption. These in their origin were effective against the federal government alone. If the [14th Amendment] has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed." "Absorption" is, to me, the language of "incorporation," although your mileage may vary. As a result, most incorporation language isn't the 1st (say) or the 14th alone, but something like "the 1st as it is incorporated by (or absorbed by) the 14th" via some particular clause of the 14th. To me, that makes Cantwell (and Palko) "incorporation" opinions. To say that "incorporation" is an invention of the Warren Court (or Black) seems to me to play too much on a word--incorporation--rather than the reasoning. And as I suggested before, there is at least decent historical support for the idea that, before Slaughterhouse neutered it, that "privileges or immunities" did have a purpose of applying most of the first eight amendments to the states. That's why I think the "complication" starts long before Black or the Warren Court.
3.20.2008 11:32am
Zathras (mail):
DB: He does mention the First Amendment earlier in his opinion. Take a look at this paragraph from the opinion:

But it is said that the guaranty against abridging freedom of speech contained in the First Amendment of the federal Constitution applies only to federal action; that the legislation here complained of is that of a state; that the validity of the statute has been sustained by its highest court as a police measure; that the matter is one of state concern; and that consequently this court cannot interfere. But the matter is **129 not one merely of state concern. The state law affects directly the functions of the federal government. It affects rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. These are rights which are guaranteed protection by the federal Constitution; and they are invaded by the statute in question.

More generally, I think you're requiring a greater degree of specificity than is possible, given the circumstances. A concept will not be perfectly sculpted at its first articulation.
3.20.2008 11:39am
LarryA (mail) (www):
Given that 44 states have a state constitutional right to keep and bear arms provision, incorporation would not seem to be a major change.
3.20.2008 1:01pm
TomJackson (mail):
In considering the issue of "incorporation" pre-Warren Court (or Black), I'd like to set forth one other case, Jackson's 1943 opinion in Barnette which seems to me about as clear a statement of what I would consider "incorporation" that you could find. He writes, 319 U.S., at 639: "In weighing the arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard.... It is important to note that, while it is the Fourteenth Amendment which bears directly upon the State, it is the more specific limiting principles of the First Amendment that finally govern this case."

Now, it is possible to still claim that this isn't an "incorporation" opinion, since it is the "principles" of the First that are applied via the Fourteenth, rather than the literal language (although note Jackson's reference to "the specific prohibitions of the First become its standard"). But I had always assumed that at least "selective" incorporation ultimately was about principles that were given meaning by the particular provision of the bill of rights at issue. If the specific language of the First rather fully "informs" the review of the Fourteenth, as occurred in Barnette, I don't think one wrenches language to say that this is tantamount to "incorporation." (Justice Thomas, I believe, uses that sense of "incorporation" in arguing for a different interpretation of the establishment clause as applied to states, such as in his concurring opinion in Zelman. Indeed, in fn. 3 he writes "[s]everal Justices have suggested that rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do the the Federal Government." While perhaps not meeting the most limited, technical, sense of "incorporation," that is, I think, a common use of what is meant by "incorporation"--principles informed by the specific provisions, as Jackson wrote.)
3.20.2008 1:15pm
Tony Tutins (mail):
44 states have a state constitutional right

This is not as reassuring as one might think. The Illinois Constitution makes the right to keep and bear arms subject to the police power. The Seventh Circuit, construing the Illinois Constitution in Quilici decided that Morton Grove's handgun ban was a legitimate use of the police power, because (wait for it) the possession of rifles and shotguns was allowed. (Illinois's municipal home rule statute permitted localities to regulate gun possession.)
3.20.2008 1:17pm
MarkField (mail):

But that the two correlate does not mean that one caused the other, any more than one can state with confidence that the post-1958 trend was caused by the Dodgers leaving Brooklyn.


The Dodgers left Brooklyn after the 1957 season. I'm sure you're crushed by the failure of this particular correlation.
3.20.2008 1:56pm
Brett:
I realize I'm once again straying into the Wonder Land liberal lexicon, here, but at what point did construing a Constitutional amendment faithfully to its original intent and meaning begin to constitute an abandonment of strict constructionism and judicial modesty?

Memo to liberals (and, heck, some conservatives): "Judicial activism" is not synonymous with "striking down laws I like".
3.20.2008 2:12pm
A.W. (mail):
i wrote to balkin himself to point out a few other flaw in her analysis. the claims they are not really be strict constructionists. then she complains that kennedy was talking about frontier life, and scalia was talking about bans on the ownership of guns to scots and catholics. Except those ARE originalist arguments. The frontier life issue is pretty obvious. But the ban is more subtle and more devastating: apparently in England when they want to disarm the scots and the catholics, they did so by forbidding them to "keep and bear arms." Scalia's point was that you couldn't evade that ban by remaining outside of a militia, so when the same words are used in securing a right to gun, you shouldn't have to be in a militia. Agree or disagree, that is an originalist argument.

I used to respect Dahlia, but somewhere along the way she just became another boring, deranged liberal.
3.20.2008 2:40pm
Kevin O'Brien (mail) (www):
The difference between Lithwick and Greenhouse is: Lithwick is more transparently partisan, while Greenhouse for years was effective at hiding the fact that her column was a rewrite of one side's brief. That, and Greenhouse would usually make a charitable nod to the "opposing" side (scare quotes used because what reporter is supposed to have a "side?").

As USSC-covering one-sided hacks go, Lithwick isn't fit to proof Greenhouse's copy.
3.20.2008 3:03pm
Wince and Nod (mail) (www):
<i>Given most states have abdicated any actual militia role, what would it take to start a state "militia"?</i>

The state passes enabling legislation. As when the New York State Guard was created.

Yours,
Wince
3.20.2008 3:06pm
Conservative Activist Judge:
DiverDan,

That's some good snark! I can only read her column if it's on a completely apolitical topic. But I stopped reading them about a year ago because I discovered that describes only about 20% of her columns.
3.20.2008 3:42pm
Daryl Herbert (www):
David Bernstein wrote: the states have a police power, and the federal government does not.

The Federal Government does have police power, implied by the Commerce Clause.

Or, to put it differently, what crimes out there don't affect (interstate) commerce?
3.20.2008 4:14pm
Kevin P. (mail):
Wikipedia has an interesting article on present day state militias. They are not as dormant as I thought.
3.20.2008 4:21pm
Richard Fagin (mail):
The states may have a police power in terms of the power they have being diminished only by the powers substantively denied to them by the Constitution, but that is not a correct statement in and of itself. Most states (all?) have some form of constitution that grants to the states only certain powers over their respective citizens. Lawprof types have for so long used the statement "police power" when describing the states that the original meaning may have been lost.
3.20.2008 4:44pm
jrose:
at what point did construing a Constitutional amendment faithfully to its original intent and meaning begin to constitute an abandonment of strict constructionism and judicial modesty

I guess it is arguable that the original intent of the Second Amendment was to have judges decide, through a long series of cases, what lines legislatures may not cross. But, I don't see how that can be characterized as modest.
3.20.2008 4:45pm
Voolfie (mail) (www):
The persistent theme running through the left in this country, from DC City Hall to the offices of several SC Justices, to the editorial offices of Slate is, "Don't muddy the water with facts, just let us superior intellects engineer the outcomes we KNOW will improve things". Sadly, if Ms. 'L' is any indication, they're nowhere near as smart as they think they are - and their "solutions" are often worse than the problems.
3.20.2008 5:02pm
Brett Bellmore:
Out of curiosity...

As I understand it, "rational basis" scrutiny" means the legislature gets to violate the Constitution if the judge can imagine that the legislators had a reason for doing something, but it doesn't have to be a valid reason.

Intermediate scrutiny requires the legislature to actually assert that objectively stupid excuse before violating the Constitution.

And strict scrutiny says that, in order to violate the Constitution, the legislature has to actually have a good reason.

At what level of scrutiny does the Court require the government to simply obey the Constitution, even if they've got a good reason for wanting to violate it?
3.20.2008 5:08pm
zippypinhead:
Bama 1L wrote :
"I think you might indeed have three rights:
1. 2d Amendment Militia Clause prevents federal government disarming state governments. Largely obsolete, since state governments aren't very interested in maintaining militias. This obviously can't be incorporated against the states."
Not entirely obsolete. There are, indeed authorized (and in some case active) state militias still in existence today. The Virginia Defense Force has 700 sworn volunteer members, and does drill; someone on another thread pointed out that the VMI student body is also considered part of the Virginia militia. There is at least a potential Second Amendment issue here if the Federal government were to overstep its authority vis a vis such militias. For a surprisingly exhaustive discussion of current formal state militia activity, see the ever-authoritative Wikipedia entry.
"2. 2d Amendment "Keep and Bear Arms" Clause prevents federal government disarming citizens of weapons they have for the purpose of resisting tyranny. This is a fun idea, but about as likely to be enforced as various state constitutional rights to revolt. This can be incorporated against the states."
Although this appears to be the one context in which the Miller test for protected arms makes sense in an individual rights context. But given Justice Kennedy's comments at oral argument, don't be shocked if the Supreme Court tosses Miller overboard entirely.
"3. Unenumerated but historically-recognized "Guns for Self-Defense and Hunting" Right found under 14th Amendment Due Process analysis prevents any government depriving citizens of weapons kept for these traditional purposes, but is probably subject to rationality review."
I have to disagree. It strikes me as clearly being encompassed within the scope of the operative clause of the Second Amendment (which, unlike the preface, does not appear to have a purpose or limitation). And the Court's extensive discussion of Blackstone, frontier settlers, et al. at oral argument suggests that at least some Justices believe this was an intended reason for the enumerated right in the operative clause.

It may be better to think of the Second Amendment as having two components: (1) militia-related, and (2) non-militia related (which is the question the Court granted cert. on, of course). The latter is where the incorporation battle will occur. Although if one assumes Miller is either overruled or limited to the former, there may be no Constitutional impediment to states banning or otherwise regulating machineguns or pretty much any other type of purely "military" weapon?
3.20.2008 5:09pm
zippypinhead:
I know I'm going to get in trouble for typing this, but I've always had poor impulse control:

You guys are taking Dahlia Lithwick waaaaay too seriously. I first met Lithwick about 10 years ago when she was a young stringer covering the U.S. v. Microsoft trial. I found her to be intelligent, personable (there go any Coulter analogies, IMHO) a decent writer, funny (sometimes unintentionally so) -- and entirely susceptible to letting her personal opinion influence supposedly objective reporting. A Stanford law graduate, if memory serves -- which has its own set of baggage ;) And entirely without any background in Constitutional jurisprudence -- I believe she was a domestic relations lawyer after law school before she decided to try to make a living writing. If you read Lithwick like she's a pure op ed columnist rather than a skilled and objective legal journalist, you'll have less heartburn. Of course that's the way you're supposed to read everything published in Slate, right?
3.20.2008 5:22pm
percheron (mail):
Isn't Dahlia Lithwick Professor of Charms at the Hogwarts School of Witchcraft and Wizardry?
3.20.2008 5:54pm
zippypinhead:
Isn't Dahlia Lithwick Professor of Charms at the Hogwarts School of Witchcraft and Wizardry?
There you go again -- still mixing her up with Ann Coulter, I see. Coulter got her mastery of Charms during those long, dark, haunted law school winters in Ann Arbor during the 1980s (and U. Mich. law school architecture is a lot like Hogworts too, now that I think about it, tho with significantly more dementors lurking about among the law quad's gargoyles, if not the faculty lounge). If you're gonna cite Harry Potter mythology, Lithwick's Stanford is of course a perky, giggly and altogether non-serious place more like Fleur Delacour's Beauxbatons Academy. ;~)

But no fair for anybody to remark on how Dave Kopel and Coulter are roughly U.Mich.L.Rev. contemporaries, since rumor has it they DID wash the toxins out of the cauldrons in the Law Review suite down in the third sub-basement of the Michigan law library between ed boards...
3.20.2008 6:24pm
Crafty Hunter (www):
(This is a slightly edited repost of something I wrote for another blog at the end of a relatively obscure thread; perhaps it would here better be seen).

A plain reading of the Second Amendment and its original intent would require non-interference with American citizens who wished to own nuclear weapons. This is the invisible elephant virtually no one wants to recognise. Thus, the contortions over the meaning of this individual right to arms that are ordinarily held by the military, from nuclear weapons down to handguns. Once the concept of a limit on the right is accepted, the rest is simply political wrangling, even if veiled by an accumulation of centuries of obfuscatory legal interpretation.

The founding fathers, to be fair, simply couldn't have anticipated nuclear weapons, nor for that matter surface to air missiles capable of downing civilian aircraft (I hardly need point out that mass air transport was another concept unknown in 1791).

I confess to being uncomfortable with the idea of uncontrolled direct personal ownership of nuclear weapons, or of other weapons of mass destruction. This is hardly a unique view. Going down the ladder, it is an interesting question for instance whether a machine gun (by which I do mean an actual machine gun, and not a hysterical media distortion of mere automatic rifles into true machine guns) qualifies as a "weapon of mass destruction"). I do not think that it does, but recognise the scope for controversy. Certainly I do not think that short-barrelled shotguns should be restricted, since such are in wide use in the military by for example special forces, as well as by civilian police forces. Nor should automatic rifles be restricted, for much the same reasons. As a practical matter, the Swiss don't appear to have a special problem with automatic rifles in private homes.

I realise the difficulty with drawing such lines, and do not wish to be drawn into a long discussion over them, but only to offer a few thoughts for the sake of a small addition to clarity, at which endeavor I hope this post has succeeded.

I will add one more point, which is that it is a good question how well an outraged civilian population would be able to actually fight a heavily militarised federal government, should it come to that. This isn't relevant to using firearms for defending one's life and safety against ordinary thugs, but is very interesting nonetheless.
3.20.2008 7:03pm
Crafty Hunter (www):
(This is a slightly edited repost of something I wrote for another blog at the tail end of a relatively obscure thread; perhaps here it would fit better).

A plain reading of the Second Amendment and its original intent would require non-interference with American citizens who wished to own nuclear weapons. This is the invisible elephant virtually no one wants to recognise. Thus, the contortions over the meaning of this individual right to arms that are ordinarily held by the military, from nuclear weapons down to handguns. Once the concept of a limit on the right is accepted, the rest is simply political wrangling, even if veiled by an accumulation of centuries of obfuscatory legal interpretation.

The founding fathers, to be fair, simply couldn't have anticipated nuclear weapons, nor for that matter surface to air missiles capable of downing civilian aircraft (I hardly need point out that mass air transport was another concept unknown in 1791).

I confess to being uncomfortable with the idea of uncontrolled direct personal ownership of nuclear weapons, or of other weapons of mass destruction. This is hardly a unique view. Going down the ladder, it is an interesting question for instance whether a machine gun (by which I do mean an actual machine gun, and not a hysterical media distortion of mere automatic rifles into true machine guns) qualifies as a "weapon of mass destruction"). I do not think that it does, but recognise the scope for controversy. Certainly I do not think that short-barrelled shotguns should be restricted, since such are in wide use in the military by for example special forces, as well as by civilian police forces. Nor should automatic rifles be restricted, for much the same reasons. As a practical matter, the Swiss don't appear to have a special problem with automatic rifles in private homes.

I realise the difficulty with drawing such lines, and do not wish to be drawn into a long discussion over them, but only to offer a few thoughts for the sake of a small addition to clarity, at which endeavor I hope this post has succeeded.

Also, I am by no means a Constitutional scholar, but agree for what it is worth that it would be difficult to argue that the several states are not bound by such a fundamental individual right, should the Supreme Court rule simply that it is indeed an individual right with which to begin. I am keen to see how this plays out in the lower courts, especially in jurisdictions encompassing New York State and New Jersey, as well as Hawaii and California.

I will add one more point, which is that it is a good question how well an outraged civilian population would be able to actually fight a heavily militarised federal government, should it come to that. This isn't relevant to using firearms for defending one's life and safety against ordinary thugs, but is very interesting nonetheless.
3.20.2008 7:12pm
mollyrogers (mail):
Michael Mannheimer: I simply refuted your broad claim that "the Bill of Rights would be enforced far less against the federal government were it not for the incorporation and same-scope doctrines." I did so by citing an extraordinarily well-researched article published in one of the top few law journals in the nation by a leading expert in constitutional criminal procedure. I commend you to read it.

What breathtaking logic. How did you refute a broad claim about the entire Bill of Rights by citing one paper about one particular area, criminal procedure? And it's not even the most common area for nullifying Congressional statutes, at least, under the Bill of Rights -- the First Amendment is.

Also, the paper, as you describe it, seems to make the preposterous claim that the Warren Court was more deferential to the federal government on criminal procedure than it had been previously. Before you can motivate me to read a paper making such a bizarre claim, you'll have to describe at least a bit of what kind of argument it makes. For the purposes of refuting the above claim, a paper that follows the common law review method of selective cases and quotes is not particularly useful -- far more useful is research that looks fairly at the big picture.

As for causation, Szabo describes a very plausible mechanism, involving biases or conflicts of interest inherent in court structure and federal government review of state versus federal entities. Having completely ignored this, you are not entitled to make snarky comments invoking obviously unrelated causes.
3.20.2008 7:41pm
RKV (mail):
"A plain reading of the Second Amendment and its original intent would require non-interference with American citizens who wished to own nuclear weapons."

Not so fast. Can they be borne? Not by one person, at least from the photos I've seen. Also, how do they fit into the three missions of the militia enumerated in Article 1 Section 8?

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Can't imagine how you'd use a nuke to enforce the law. And you'd kill innocents if tried to suppress an insurrection or repel an invasion.

Case not made. Not event close. Nice boogie man argument though.
3.20.2008 7:43pm
Mark Robinson (mail):
"Case not made. Not event close. Nice boogie man argument though"

Not even a good boogie man argument.

Mark
3.20.2008 10:00pm
Crafty Hunter (www):
I think email is not being received, so I'll request here that the first, earlier post of mine above be removed, leaving behind the later, edited version; and that this small request post be removed as well after the correction. I don't know exactly what happened. :(
3.20.2008 10:58pm
matt d (mail):
I think it was Kim du Toit that came up with what I think is the best suggestion for a rule to define arms protected by the 2nd amendment:

Any weapon suitable to an individual rifleman in a body of infantry may be owned without restriction by law-abiding citizens.

M16's and M4's would certainly qualify under this rule, as would any "serious" sidearm.

RPGs, stinger missiles, belt fed machine guns (including the SAW) on up would be unprotected as "squad" weapons(my preference would be that these would generally be available with significant background checks and licenses, but that's a policy matter).

Grenades could be subject to storage requirements (reinforced magazine, etc) without "infringing".

I think this is historically defensible, and relatively easy for judges and legislatures to apply.
3.21.2008 4:01am
matt d (mail):
I guess another way to think about it would be that weapons designed to attack a person are in, and weapons designed to attack an area are out.
3.21.2008 4:03am
George Weiss (mail) (www):
federalism??? its a federally controlled district. if this argument was made in court i would ask her to retract it or face my rule 11 motion.
3.21.2008 5:02pm