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Oh, Those Hypocritical Conservative Justices.

Here they talk about "strict construction, federalism, and judicial modesty." And now we see that the Heller Second Amendment argument "is about" "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." "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." That's what Dahlia Lithwick (Slate) reports.

Here's the trouble: To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text. To say "that 'when a fundamental right is at stake, there is a role for judicial review,'" as Lithwick quotes Heller's lawyer saying, is not "in the spirit of Roe v. Wade." It's in the spirit of every case (say, every First and Fourth Amendment case) that is applying a constitutional right that's right there in the constitutional text.

Now of course some argue that the Second Amendment's text, properly interpreted, does not secure an individual right. I disagree with this, and so apparently do the conservative Justices, but there's obviously such an argument to be made. But Lithwick doesn't make it.

Lithwick says the conservatives are "abandon[ing] ... strict construction." But to actually make this bare assertion into an argument, she has to do two things. First, Lithwick must show that the conservative Supreme Court Justices have actually espoused "strict construction." Justice Scalia, for instance, has expressly rejected it: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be -- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be constructed reasonably, to contain all that it fairly means ...." Second, Lithwick must show that an individual rights view of the Second Amendment is inconsistent with strict construction (or, better yet, with whatever the conservative Justices have actually endorsed). Her account doesn't even try.

Likewise as to "judicial modesty." (David Bernstein has covered federalism very well in an earlier post.) Judicial modesty can mean many things; for instance, it could mean not reaching out beyond the facts of a particular case in order to set forth broad principles for the future. On this view, striking down the handgun ban on individual-rights grounds but reserving for later other questions (such as the proper standard of review for narrower regulations, the proper rules for other weapons, and so on) would be quite modest.

Or it could mean reading the provision in a way that doesn't unnecessarily interfere with the political branches, which sounds like what Lithwick is referring to. ("[Dellinger] reminds Kennedy that he of all people would hate a 'national government that sets a single standard for rural and urban areas, for East and West, North and South,' and that the right to own guns causes 'disputes among experts' such that the courts should hang back and allow the local legislatures to thrash it out.")

But again this assumes the conclusion about what the text means. After all, the conservative Justices agree that, for instance, the First and Fourth Amendments "set[] a single standard for rural and urban areas, for East and West, North and South" and constrain "local legislatures." They may disagree about the particular standard that should be chosen (and in very rare circumstances, such as obscenity law, they may endorse slightly different standards for different areas). Yet they agree that "judicial modesty" means not unnecessarily interfering with the political branches, and they agree that it is necessary to enforce those constitutional constraints that the constitutional text actually imposes.

There are a few scholars whose view of "judicial modesty" is that judicial review should be largely or entirely abandoned. (Lino Graglia at the University of Texas is one.) But none of the conservative Justices on the Court have ever endorsed this view.

Finally, consider one more quote: "When Gura says that the court should be taking normative questions out of the hands of legislature," Lithwick writes, "the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once." The conservative Justices have many disagreements with the Warren Court, on matters such as Miranda or (reaching into the early Burger Court) Roe v. Wade. But all of them have agreed that enforcing those rights that are actually constitutionally protected isn't "channeling the whole Warren Court" but rather channeling Chief Justice Marshall's position in Marbury v. Madison and in the other constitutional cases that went after it.

It's always appealing to accuse the other side of hypocrisy or inconsistency with its own stated beliefs -- after all, one can then set aside the hard work of actually showing why their beliefs are wrong, and instead point out that their positions are mistaken even under their own stated principles. But to do this, one actually needs to demonstrate an inconsistency, with the other side's actual beliefs and not with the beliefs that one is ascribing to them for rhetorical purposes.

Related Posts (on one page):

  1. Oh, Those Hypocritical Conservative Justices.
  2. Lithwick on Heller:
common sense (www):
The problem is not the effect this has on anyone actually aware of the issues, but on those who don't have any reference and read Slate to get information on those rare times when SCOTUS decisions reach out and touch their lives. It's quite a disservice to them, and is an abuse of the trust people put in journalists, although I understand expanding that term here does damage to the English language. When journalists are pushing for laws to protect them from contempt when they refuse to divulge sources, they should show that they are good custodians for the trust they claim.
3.21.2008 4:00pm
Kazinski:
EV,
I don't think you get it, it isn't about the constitution, it is about the guns. It isn't about how you get at the answer, it is about how you get to what the answer should be.

That is what the living constitution is all about.
3.21.2008 4:01pm
Adam J:
Maybe its just me, but all I thought Lithwick was doing was pointing out the irony of "four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come." Certainly looks like role reversal to me.
3.21.2008 4:19pm
mnarayan:
Lithwick has three rules which she thinks conservative judges should live by:

1) Defer to legislatures
2) Act federalist
3) Never overturn a precedent, or even deviate from the line of reasoning that has gone before

Whenever there is a major issue before the SC she just drops these three rules into an article. If one is violated then the conservative judges are hypocrites. This is particularly good if the federal government passes a regulation. If conservative judges overturn it then they failed to defer to the legislature and if they don't then they fail to be federalists. Even if they manage to somehow dodge the strict lines of the rules the third rule provides more than enough wiggle room to disagree with just about anything.
3.21.2008 4:25pm
NaG (mail):
Don't forget, Lithwick also wrote a missive shortly before oral argument in Heller where she opined that if America were run by women, it would "give a shit that kids keep dying for the holy blessed right to bear arms." She has been front-and-center in opposing any interpretation of the 2d Amendment that would not allow a country-wide ban on all guns, and she has desperately tried to smear those who think otherwise by claiming that they are "hypocritical" or "judicially immodest" or whatever else comes to mind.

Quite simply, she is not a legal scholar of any importance, nor is she a journalist of much worth. She provides some welcome snark from time to time in the otherwise stuffy world that the Supreme Court resides in. But for a person whose job is to cover the law, she has the distressing tendency to drown objectivity in her emotional biases.
3.21.2008 4:29pm
DCP:

Let's review: According to Lithwick - (1) interpreting a DC Law under the US constitution is somehow an abandonment of federalism; (2) interpreting "the right of the people to keep and bear arms" to mean the people have a right to keep and bear arms is somehow an abandonment of strict constructionism; and (3) and taking the case in general is somehow judicial activism.

Am I missing something or have I been grossly misinformed about the definitions of these principles?

Lithwick takes three swings with the bat and completely whiffs badly on all of them. You're out, honey. Grab a seat on the bench.

And how did this woman get her job?
3.21.2008 4:35pm
r78:
It is unfortunate that Salon has given Lithwick a podium, she is just not terribly bright.

And - God forbig - the rumor is that the Times is thinking about giving her Greenhouse's old slot.
3.21.2008 4:35pm
Anderson (mail):
The post, and the comments, selectively ignore Lithwick's evidence for her claim -- most strikingly, Justice Kennedy's apparent notion that the 2d Amendment bears some relation to a right of self-defense against wolves and grizzly bears.
3.21.2008 4:39pm
MXE (mail):
Don't forget, Lithwick also wrote a missive shortly before oral argument in Heller where she opined that if America were run by women, it would "give a shit that kids keep dying for the holy blessed right to bear arms."

Oh yeah, let's not forget that conservatives (and men, apparently) hate children.
3.21.2008 4:48pm
tarheel:
Adam J is exactly right. This is the second thread about this article, neither of which is even close to accurately describing the point of her article. She is very clear that this was an odd case because both sides abandoned their traditional positions. You can dispute that assertion, but it was not a one-sided attack on the Court's conservatives.
3.21.2008 4:48pm
Tim Dowling (mail):
Lithwick claims she performs a public service by "humanizing" the court. But she doesn't humanize the court. She caricatures the justices' positions and ridicules the law and legal process. It's 1500 words of "Hey Kennedy, we're in D.C. Why all the concern with Grizzlies?" There's no effort to challenge his reading of the history, or to analyze whether this history should be relevant to the analysis. It's just "Can you believe it? He's talking about Grizzlies, in D.C.! (yuk, yuk, yuk)" The piece really never gets more sophisticated than that, on any issue. She writes: "Scalia starts fretting about the Scottish highlanders and Roman Catholics." Well, no. He was observing that laws prohibiting Catholics from "keeping" or "bearing" arms were categorical and not tied to service in a militia, and arguing those laws are relevant to the interpretative issue. If this argument wrong or irrelevant, tell us why. To dismiss it as "fretting" doesn't humanize anything; it simply demeans the public discourse and the legal process.

Or take this example: "Clement has 15 minutes to represent the part of the Bush administration that isn't insane, . . ." Change "Clement" and "Bush" to "Waxman" and "Clinton" in that quote, and you have Ann Coulter.

Perhaps she's incapable of engaging on the merits. But by failing to do so, she does her cause a disservice.
3.21.2008 4:53pm
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 5:00pm
Anderson (mail):
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.

George, although the case arises out of D.C., the Supremes have apparently chosen to broaden the inquiry. Prof. Doug Kmiec, who was still a card-carrying conservative the last I checked:

This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.

This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. "Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
3.21.2008 5:06pm
alias:

Let's review: According to Lithwick - (1) interpreting a DC Law under the US constitution is somehow an abandonment of federalism; (2) interpreting "the right of the people to keep and bear arms" to mean the people have a right to keep and bear arms is somehow an abandonment of strict constructionism; and (3) and taking the case in general is somehow judicial activism.

Am I missing something or have I been grossly misinformed about the definitions of these principles?



1. After the incorporation cases and after Bolling v. Sharpe, there aren't many distinctions left between the states and the federal government when it comes to constitutional rights. If you'd read past the headline of Prof. Bernstein's post, you might have noticed that. Ms. Lithwick appears to mean "federalism" in the sense that the Supreme Court is restricting the options of the state governments to regulate firearms. That's not a spurious definition, and if you have an argument to the effect that Heller will not affect the states in any way, I'd be interested in hearing it.

2. If the case were that simple, there wouldn't be any controversy. The significance of the first clause is at least open to debate. Ms Lithwick characterizes the case this way: "The constitutional question is whether that first clause limits the right to bear arms to a citizen militia, or whether the militia language represents a bit of constitutional phlegm standing between you and your full-throated right to bear arms." As Prof. Volokh notes, she doesn't try very hard on the strict construction argument, but your characterization is unfair.

3. As you might be aware, "judicial activism" means a lot of things to a lot of people. One definition out there is that it's a propensity to invalidate statutes, take issues away from the legislature, and use unnecessarily broad reasoning in writing opinions. Ms. Lithwick doesn't use the words "judicial activism" at all in her piece, but her point seems to be that the conservatives on the court appear to be ready to make a sweeping change to the law and to take gun "policy" away from the legislatures. On this point, I'll admit that the Lithwick piece falls a little flat. She seems to equate judicial restraint with judicial laziness and doesn't acknowledge the consequences that flow from recognizing a constitutional right. I imagine that she'd hesitate to describe Brown v. Board of Education in similar terms, yet the change made in that case was no less sweeping than what she thinks the conservatives are about to do here.

As for this:

Lithwick takes three swings with the bat and completely whiffs badly on all of them. You're out, honey. Grab a seat on the bench.

And how did this woman get her job?
There's no need to be an ass.
3.21.2008 5:07pm
100 Middle Street:
Maybe Lithwick doesn't understand how the rest of the Constitution comes into play when resolving this debate. I actually fell into a similar trap myself. "It says militia! Right there!" And indeed, in isolation, it does seem stupid to dub the militia clause "Constitutional phlegm" and move on to "creating" a personal right.

But by now we all know the problem with that: when you consider the rest of the Constitution, and how the Second Amendment looks to serve no real role if its only purpose was to preserve some right to state militias--then the argument gets interesting. The problem is, that's a nuanced position that (along a genuine treatment of the historical stuff the Justices were asking) I don't think would get any readership on Slate.
3.21.2008 5:08pm
Turk Turon (mail):
Salon must keep her!
No doubt any replacement would be more effective and persuasive.
In fact, even leaving her position vacant would make it more effective. She is a stereotype of the screeching, squealing, snarky, poorly-informed gasbag. All we need is more people like her, and it's, "Bye-bye NFA '34!"
3.21.2008 5:10pm
NaG (mail):
tarheel: And just how badly did Lithwick thrash the non-conservative Justices? Barely a sentence.

Anderson: Seems to me that Justice Kennedy's questions focused on an issue that was rather prominent in the drafters' time, that being an American citizen on a frontier where there was no militia, and perhaps no state at all yet, yet needed protection in the form of a firearm. If the drafters did not believe that the 2d Amendment granted an individual right to keep and bear arms outside of the context of a militia, then frontiersmen had no rights to their guns. And how much sense did that make?
3.21.2008 5:20pm
Charlie (Colorado) (mail):
I posted this over at Balkinizatino, and since I haven't thought of a better way to say it I'm just going to quote myself:

Let me make sure I've got this clear: even though you think as a liberal that the Constitution ought to allow nearly unlimited gun bans, you interpret the Second Amendment as identifying a right that excludes it. So when the Justices look at a case and appear to be agreeing with you, it's a sign that they're responding to their political biases, because "of course" they don't share your reasoning; and if the Justices come to the conclusion you suspect, and which is consistent with a textual-Originalist interpretation of the Second Amendment, that will be a sign of "living constitutionalism."
3.21.2008 5:21pm
Carolina:

The post, and the comments, selectively ignore Lithwick's evidence for her claim -- most strikingly, Justice Kennedy's apparent notion that the 2d Amendment bears some relation to a right of self-defense against wolves and grizzly bears.


Even on this issue, she doesn't engage the reader in an honest debate, viz. whether or not the need to protect your farm and family from dangerous animals in the 18th century informed the drafting of the Second Amendment.

Rather, using a tone like that of a giggling schoolgirl, she implies that Justice Kennedy is afraid he is going to be mauled by a bear on the way to his car in S Ct parking lot.
3.21.2008 5:25pm
Bama 1L:
Slate and Salon are two different publications.
3.21.2008 5:26pm
DiverDan (mail):
Hell, forget Slate, Salon, or the New York Times -- Give that Woman her own late night show on Comedy Central -- She's the perfect parody of of the completely clueless liberal, willing to ignore the facts and any pretense at reason or logic if they fail to support her position. She would be the perfect follow-on to the Colbert Report.
3.21.2008 5:26pm
George Weiss (mail) (www):
anderson

This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. "Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.

your deliberately using the words "relate to the states" to confuse the issue. and you know it.

its absolutely clear that the question was whehter the 2nd amendment says FEDS have limits on abolishing state militias or if the 2nd amendment says the FEDS have limits on prohibiting people from personally owning weapons.

nothing to do with whehter the STATES have any limitations at all.
3.21.2008 5:31pm
Perseus (mail):
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.

But according to Lithwick's evolving standards of statehood, the District of Columbia IS a state. It's just those mean-spirited, hypocritical conservative justices who refuse to recognize DC's statehood.
3.21.2008 5:37pm
Anonymouseducator (mail) (www):
Rather, using a tone like that of a giggling schoolgirl


Really?
3.21.2008 5:39pm
Dahlia Lithwick Is An Idiot (mail):
One of the other nitwits at Slate's Convictions blog -- which is linked to by Scotusblog, whose Tom Goldstein worked on the Petitioner's briefs -- claimed that Heller would destroy constitutional theory and prove Jerome Frank right: it is all what judges eat for breakfast. Apparently, the sky is falling in Liberal-landia. Back in reality, Breyer and Ginsburg may concur there is an individual right, concur that this ban falls, and save their ammunition for a battle about the level of scrutiny in future cases. If that were to occur, was constitutional theory still destroyed? Is it all preference-voting now? Or if an Ivy League liberal agrees is it legitimate? Nevermind that well over 70% of the public supports an individual right to keep and bear arms particularly for the purpose of self-defense in the home; Lithwick pretends to care about popular soveriegnty and legitimacy, but she just cares about outcomes that liberal elitists prefer, even if everyone else disagrees and the arguments on the other side are supported by evidence of greater quantity and quality. She isn't reporting on the oral argument; she thinks "the liberals" have lost and she's a sore loser.
3.21.2008 5:46pm
George Weiss (mail) (www):
persues-

heh
and according to my evolving standers of the progressivism-theres no such thing as absolute immunity for prosecutors-

still-if i sued one for prosecuting me in the course of their state duties and refused to retract-i would be sanctioned.

if an argument would be sanction able were it heard in court-then you probably shouldn't argue academically that "the justices are flying in the face of their jurisprudence"

its a shame that academic writing doesn't share similar ethical rules to court filings...or maybe she doesn't consider slate "academic" writing.
3.21.2008 5:46pm
Anderson (mail):
your deliberately using the words "relate to the states" to confuse the issue. and you know it

Uh, dude, that's Prof. Kmiec's phrase, not mine -- take your indifferent grammar to him.

whether or not the need to protect your farm and family from dangerous animals in the 18th century informed the drafting of the Second Amendment.

Okay -- bingo. Glad a couple of you walked into that, because it illustrates the point so nicely.

There is nothing, NOTHING, N-O-T-H-I-N-G, in the actual *text* of the Second Amendment, to support any such "informing" of the drafting of the Amendment.

That is exactly the kind of spurious argument that makes Justice Scalia a notorious skeptic about legislative history.

If it's okay to argue from what "informed the drafting," where there is NOTHING in the text to support that reading, then fine.

Just don't call yourself an "originalist," or complain that there's no right to privacy "in" the Constitution.
3.21.2008 5:46pm
Anderson (mail):
Put another way, the "fact" (for sake of discussion) that grizzlies and wolves were a known threat, requiring a gun for self-defense ...

... and that the drafters of the 2d Am knew this ...

... is very strong evidence that the Amendment is NOT meant to safeguard such a right, because had they *wanted* to do so, they could and would have written it that way.

Go try the Ninth Amendment, folks.
3.21.2008 5:48pm
z9z99:
Assuming for the sake of argument that Heller is taken only to apply to the federal government, any opinion on whether the feds could then use the spending power to force restrictions on the states, for example by conditioning Medicaid reimbursement on stricter gun laws?
3.21.2008 5:51pm
Dahlia Lithwick Is An Idiot (mail):
Go try the Ninth Amendment, folks.

Go try a time machine.
3.21.2008 5:52pm
George Weiss (mail) (www):
Uh, dude, that's Prof. Kmiec's phrase, not mine -- take your indifferent grammar to him.

yes. and you completely misunderstood? what he is saying. He also uses that phrase to refer to the issue of whehter the right is a right to have state militias (i.e relates to the states) or whehter it is a personal right.

he does not-by any stretch of the imagination-use the phrase to mean a limitation on a states rights to prohibit handguns
3.21.2008 5:53pm
Dahlia Lithwick Is An Idiot (mail):
for example by conditioning Medicaid reimbursement on stricter gun laws?

I see how highway money relates to drunk driving. I don't see how firearms restrictions relate to subdizing health care for the poor.
3.21.2008 5:54pm
z9z99:
DLIAI

Well, you may not see a relationship, and I may not, but correct me if I'm wrong; wasn't one of the claims in Chicago's suit against certain gun manufacturers that the city's healhcare system was burdened by caring for gunshot victims?
3.21.2008 6:02pm
NaG (mail):
Anderson, are you telling me that the drafters had to include every good reason for a right to keep and bear arms in order to fully realize that right?

I am troubled by the continuing insistence that powers granted to the government be read expansively, while rights granted to individuals be read as constrained as possible.
3.21.2008 6:08pm
Wrinkle-Free Pants (mail):
wasn't one of the claims in Chicago's suit against certain gun manufacturers that the city's healhcare system was burdened by caring for gunshot victims?

What does the extent ot private recovery from civil defendants under state tort law have to do with the federal spending power?
3.21.2008 6:15pm
Joe -- Dallas, TX (mail):
I personally would rather have judges who respect all the rights in the constitution as opposed to those judges who ignore certain rights and create rights not in the constitution. A few come to mind, such as the double jeapordy clause (trying criminal cases multiple times under different statutes, fed vs state, for the same offense), the takings clause of private property for public purpose (ie kelo), first admendment and campaign finance reform, and the right of the people to keep and bear arms, just to name a few.
3.21.2008 6:16pm
Letalis Maximus, Esq. (mail):
Yeah, I wanted to bludgeon her about that "new" right nonsense to her when I read that crap over on slate. However, you have to register to comment and...well..."screw that."

You have a right, of at least some kind, that is explicitly mentioned in the Second Amendment to the Constitution. An Amendment that has been directly discussed by the Supreme Court exactly one time in over 200 years. In a criminal case where only the prosecution appeared. And Lithwick has the gall to call it a "new" right?

IMO, Lithwick is a gossip columnist tool posing as a serious legal journalist.
3.21.2008 6:18pm
JMHawkins (mail):

whether or not the need to protect your farm and family from dangerous animals in the 18th century informed the drafting of the Second Amendment.


That explains it! It's all just a typo. "The right of the People to keep and bear arms" was supposed to read "the right of the People to keep arms to shoot bears."

Hmm, seems like that could spell trouble for the Endangered Species Act.

Anyway, it seems to me that the real test of hypocracy is whether someone is willing to treat the 1st and 2nd Ammendments equally.
3.21.2008 6:20pm
z9z99:
I find it interesting that, under the interpretation of the Second Amendment advocated by the District of Columbia, a statute that read


Regarding the militia, it shall be unlawful for the people to keep or bear arms.


would NOT prevent an individual from keeping an arsenal in his home nor restrain him from taking an AK-47 to the grocery store.
3.21.2008 6:20pm
Anderson (mail):
Anderson, are you telling me that the drafters had to include every good reason for a right to keep and bear arms in order to fully realize that right?

They don't say why cruel and unusual punishment is forbidden; they don't say why trial by jury is to be preserved; but, remarkably, there *is* a rationale given in the Second Amendment.

Why?

I'm coming at this simply as a lawyer reading the law, who furthermore owns a couple of guns, grew up shooting guns, and has no problem with any "individual right" -- there are constitutional issues that interest me, but the 2d Am is not one of them.

That said, I would find it remarkable if a certain fear of the mob did not inform that Amendment's preamble-or-whatever.

... I'm reading yet another history of the French Revolution right now (David Andress, The Terror), and a thought experiment occurs to me -- what would the Bill of Rights have looked like had it been drafted in late 1792 or early 1793, after the Tuilleries slaughter and the September massacres, instead of 1789?
3.21.2008 6:25pm
Visitor Again:
I'm very far to the Left, and I have never understood what all the fuss is about guns in this country. I've read Lithwick's piece, and it seems to me she's unfair to the right-wingers on the Court in this instance.

It's pretty clear to me, a nonexpert although I've now read quite a bit, that there's an individual right that's not contingent on militia service. The rest of the questions can be handled by the normal judicial interpretation of fundamental rights--compelling interest scrutiny (although Roberts apparently thinks this is garbage) and time, place and manner regulation. We won't have tanks and machine guns on display on Main Street. We will have law-abiding citizens armed and ready to defend themselves and perhaps others against those who are violent law-breakers. Putting aside the second amendment, I must say this also is eminently reasonable. Isn't it?
3.21.2008 6:30pm
z9z99:
Wrinkle-Free pants:


What does the extent ot private recovery from civil defendants under state tort law have to do with the federal spending power?


Nothing. I'm not sure why you are asking. The question is whether Congress can condition federal healthcare to the states on state's enacting gun laws, because, it could be argued, the expenditure of healthcare dollars is affected by gun-shot related trauma. Perhaps you will recall that the Clinton administration threatened Medicdaid payments to states that forbade the use of public funds for abortions. This had nothing to do with private recovery in tort.

I will assume that the ambiguity is my fault, but I was just wondering if people here thought that the federal government would have the power to restrictively influence state gun laws if any "individual right" affirmation in Heller was not extended to the states.
3.21.2008 6:31pm
dmoo:
Is anybody in jail now having been convicted under the DC handgun ban? What happens to their plight if the SC upholds the lower courts ruling in Heller?
3.21.2008 6:33pm
z9z99:
Oh, and while we're on the topic, does anyone know how effective the DC gun law is? How many firearms related crimes occur in the City?
3.21.2008 6:35pm
hattio1:
NaG says;

I am troubled by the continuing insistence that powers granted to the government be read expansively, while rights granted to individuals be read as constrained as possible.


I assume you're just as troubled when the right they are constraining is the rights codified in the 1st, 4th, 5th or 6th amendments?
3.21.2008 6:36pm
Anderson (mail):
Putting aside the second amendment, I must say this also is eminently reasonable.

You and Justice Kennedy.
3.21.2008 6:38pm
H Bowman, MD:

Oh, and while we're on the topic, does anyone know how effective the DC gun law is? How many firearms related crimes occur in the City?



DC is consistently in the top ten (if not #1 or #2) in firearms homicides yearly. The firearms ban clearly doesn't work, it disarms only the law-abiding.

In DC, when seconds count, the police are only minutes away.
3.21.2008 6:44pm
Visitor Again:
You and Justice Kennedy

Well I do live in the West and I know some people who've met grizzlies face to face, albeit admittedly not in central Los Angeles.
3.21.2008 6:45pm
Rod Blaine (mail):
> 'Lithwick also wrote a missive shortly before oral argument in Heller where she opined that if America were run by women, it would "give a shit that kids keep dying for the holy blessed right to bear arms".'

Whereas when "kids keep dying" for a different "holy blessed right" that's spelled out just a bit further down (somewhere) in the Bill of Rights, Lithwick applauds. Guess which right?

> "distressing tendency to drown objectivity in her emotional biases"

This is Carol Gilligan 101 stuff.
3.21.2008 6:45pm
Bert Campaneris (mail):
The post, and the comments, selectively ignore Lithwick's evidence for her claim -- most strikingly, Justice Kennedy's apparent notion that the 2d Amendment bears some relation to a right of self-defense against wolves and grizzly bears.

Which would of course be evidence of her claim if anyone ever accused Kennedy of being a strict constructionist, federalist, or proponent of judicial modesty. As such accusations have not been reasonably leveled at Kennedy for at least fifteen years, Lithwick's claims are either moronic or deliberately dishonest.

I'm open to debate on which of the two is the proper charge.
3.21.2008 6:51pm
Ernst Blofeld (mail):
I think the 2nd would have looked identical if drafted after the French terror. People underestimate the founders; they were, after all, violent revolutionaries, and not shrinking pansies. The 2nd was also adopted after Shay's Rebellion.

The militia prong of the 2nd is intended to act as a check on the government. The militia is in large part equivalent to the people themselves due to the universal membership requirement, and if the people become corrupt any parchment barriers to their actions will be ineffective anyway.
3.21.2008 7:06pm
Wrinkle-Free Pants (mail):

The question is whether Congress can condition federal healthcare [for poor people] to the states on state's enacting gun laws [in violation of state constitutional guarantees], because, it could be argued, the expenditure of healthcare dollars is affected by gun-shot related trauma.



But the expenditure of federal healthcare dollars is not affected by gun-shot related trauma if Medicaid funding is not conditioned on it, so the above is question-begging.

Evene if it were, is it even true that gunshot trauma has a disparate impact on Medicaid recipients?

And, can the federal government force a state to pass a statute that violates the state constitution without actually preempting the state constitutional provision?

If by the boldfaced "healthcare dollars" you mean "[state] healthcare dollars," or that more shot people = more public hospital bills, that is a poor analogy to the Chicago suit, which, if I recall, dealt with a public nuisance action against gun manufacturers asking for civil damages, unless your analogy is meant to ask whether the federal government may withhold Medicaid funds from states that do not increase their civil tort damage awards against private plaintiffs.
3.21.2008 7:07pm
tyree (mail):
Was their any attempt to ban the private ownership of guns while the framers of the Constitution were still alive?
3.21.2008 7:12pm
Thorley Winston (mail) (www):
Which would of course be evidence of her claim if anyone ever accused Kennedy of being a strict constructionist, federalist, or proponent of judicial modesty. As such accusations have not been reasonably leveled at Kennedy for at least fifteen years, Lithwick's claims are either moronic or deliberately dishonest.

I'm open to debate on which of the two is the proper charge.


Why not both?
3.21.2008 7:13pm
hitnrun (mail) (www):
Lithwick says the conservatives are "abandon[ing] ... strict construction."


Maybe they think "constructionism" refers to the construction of judicial activist-liberal thought combined with stare decisis?
3.21.2008 7:14pm
Oren:
Well, you may not see a relationship, and I may not, but correct me if I'm wrong; wasn't one of the claims in Chicago's suit against certain gun manufacturers that the city's healhcare system was burdened by caring for gunshot victims?
Not that this as any bearing to that frivolous suit, but there are indeed gang members who have been admitted to some Chicago hospital dozens of times. They are, of course, incapable of ever paying these bills (no matter how hard they work, the interest rises faster than their payments so they just don't bother - why would they?). For the lady I knew that worked the ER, it became a serious problem to comport herself in a professional manner (i.e. stitch them back up and send them off) given their disrespect for their own lives.

What the heck do we do with these things?
3.21.2008 7:15pm
Oren:
Was their any attempt to ban the private ownership of guns while the framers of the Constitution were still alive?
Massachusetts had a law banning the keeping of loaded firearms inside of cities due to risk of fire.
3.21.2008 7:16pm
ThomasD (mail):
I don't see how firearms restrictions relate to subdizing health care for the poor.


Well, just who do you think pays the tab for all those GSWs at major metro (e.g. D.C.) trauma centers? Gang bangers and crack dealers do not get major medical.

Of course witholding Federal healthcare monies in lieu of stricter gun laws presumes that those laws are even effective in reducing violence committed with firearms (i.e. D.C.) But when has common sense ever been a factor in this issue.
3.21.2008 7:18pm
Dahlia Lithwick Is An Idiot (mail):
Gang bangers and crack dealers do not get major medical.

That doesn't mean they are on Medicaid.

Of course witholding Federal healthcare monies in lieu of stricter gun laws presumes that those laws are even effective in reducing violence committed with firearms

And that the state constitution doesn't prevent the enactment of these stricter gun laws. But a step is also missing here. Plenty of poor people rely on Medicaid for reasons totally unrelated to gun violence. There really isn't any connection between Medicaid and gun violence, so I don't see that passing South Dakota v. Dole, especially since withholding the funding won't reduce gun violence, it will just deprive Medicaid recipients with diabetes of insulin for no reason, for example. Really, the hypo makes no sense.
3.21.2008 7:29pm
z9z99:
Wrinkle-Free Pants:


But the expenditure of federal healthcare dollars is not affected by gun-shot related trauma if Medicaid funding is not conditioned on it


I disagree completely. Medicaid funding for any number of conditions is not conditioned on policies related to those conditions but is most definitely affected by those conditions.


Evene if it were, is it even true that gunshot trauma has a disparate impact on Medicaid recipients?


Who cares? You'll have to explain where there is a "disparate impact" test related to the relative prevalence of any condition in Medicaid and non-medicaid populations. The question is whether government expenditures are influenced at all by a particular condition, not whether that condition disproportionatly affects government beneficiaries.


And, can the federal government force a state to pass a statute that violates the state constitution without actually preempting the state constitutional provision?


This is part of the question that I was asking. Can they?

With regard to your last paragraph, I don't think you and I agree on what the purpose of an analogy is. Think more in terms of what government interest justifies any action, whether it be a nuisance suit or enacting a statute or regulation, regarding the expenditure of healthcare funds.
3.21.2008 7:35pm
Mark Buehner (mail):
Massachusetts had a law banning the keeping of loaded firearms inside of cities due to risk of fire.


This was an astonishingly poor analogy made by Justice Stevens. Only the most truly diehard of the NRA argue that the government has no place in regulating firearms. The government might ban a public protest meeting on a rickety bridge, but that doesnt touch on the 1st Amendment.
3.21.2008 7:41pm
Cold Warrior:
Lithwick is such a good writer that sometimes it's easy to forget that she's not a very good lawyer.
3.21.2008 7:42pm
Dahlia Lithwick Is An Idiot (mail):
Think more in terms of what government interest justifies any action, whether it be a nuisance suit or enacting a statute or regulation, regarding the expenditure of healthcare funds.

For someone who needs a refresher course in logic and federalism, your condescension is unnecesary.

A nuisance suit by a municipality asking for civil damages from a state judge is not the same as federal preemption by way of Congressional Act. In any event, you haven't made the case for either, because conditioning money through the federal spending power is not an imposition, it requires the state's consent. And, I have never heard of Congress saying, "We won't give you any money unless your judges start assessing more penalties against civil defendants we don't like." Please cite me a case. Love to see it.

The question is whether government expenditures are influenced at all by a particular condition, not whether that condition disproportionatly affects government beneficiaries.

This is about the third time you have changed your question, and here now you inject an equivocation on the word "condition". "Medical condition suffered" and "condition (or terms) upon which the state accepts the money" are distinct. Sophistry really has no place here.


Medicaid funding for any number of conditions is not conditioned on policies related to those conditions but is most definitely affected by those conditions.

This is pure nonsense.
3.21.2008 7:49pm
z9z99:
DLIAI:


Really, the hypo makes no sense.


Oh, were it only as simple as that. I asked above whether the DC gun law was effective, and the only resonse that addressed teh question said that it was not. But my hypothetical was not "Does it make sense for the federal government to try to influence state gun laws through the spending power," it was "Can they?" Congress, and the Supreme Court do lots of things that make no sense; yet, for political purposes, or to stick a thumb in the eye of political opponents, or whatever, it still does them. Personally, I think the "collective rights" argument, in addition to being a mild oxymoron, makes no sense. But there is nothing to prevent ideologues from promoting postions that make no sense in the service of broader goals.

As I alluded to previously, the Clinton DHS passed a rule that threatened Medicaid reimbursement to states that resticted the use of public funds for abortions. Talk about not making sense. But the impetus for this was political, not practical. I suspect that gun-control true believers will inspect any Heller opinion for cracks or ambiguity to exploit as a part of their planning. My question was whether, as a matter of law (not unfortunately, common sense) Congress could use the spending power, (or any other Constitutional Swiss Army Knife) to achieve such a political result.
3.21.2008 7:51pm
Kalamazoo:
If we were going to ditch one of the amendments in the Bill of Rights in order to reduce the number of deaths, it probably should be the Fourth.
3.21.2008 7:52pm
Kazinski:
"Scalia starts fretting about the Scottish highlanders and Roman Catholics."

I have to credit Lithwick here, she goes to the weakest point in Scalia's argument, of course any rational gun control scheme is going to keep arms out of the hands of Scottish Highlanders. But just as there is an valid exclusion for felons, well how is wearing a kilt all that different? Catholics are however another matter, as long as they are willing to sign an oath rejecting the doctrine of transubstantiation then I see no reason to restrict their rights to keep and bear arms.

But seriously if a right to "keep and bear arms" only refers to a military usage, then obviously a ban on keeping and bearing arms would then only pertain to drilling and assembly for military purposes wouldn't it?
3.21.2008 8:00pm
Eugene Volokh (www):
Folks: As you can tell, there's much I disagree with Lithwick about. But there's no need for name-calling here; let's keep the discussion substantive, rather than just throwing around insults.
3.21.2008 8:14pm
Kevin P. (mail):

Visitor Again:
I'm very far to the Left, and I have never understood what all the fuss is about guns in this country. I've read Lithwick's piece, and it seems to me she's unfair to the right-wingers on the Court in this instance.

It's pretty clear to me, a nonexpert although I've now read quite a bit, that there's an individual right that's not contingent on militia service. The rest of the questions can be handled by the normal judicial interpretation of fundamental rights--compelling interest scrutiny (although Roberts apparently thinks this is garbage) and time, place and manner regulation. We won't have tanks and machine guns on display on Main Street. We will have law-abiding citizens armed and ready to defend themselves and perhaps others against those who are violent law-breakers. Putting aside the second amendment, I must say this also is eminently reasonable. Isn't it?

Thank you!
3.21.2008 8:20pm
z9z99:
DLIAI:

There was no condescension contained in my post. It's interesting that you think that there was. And I made no personal reamarks regarding anyone, yet you seem to want to deflect the discussion from the question that I asked to whether I need educated regarding federalism and logic, a form of ad hominem that adds little to the discussion. And it is interesting that you said I changed my question three times. Who brought up preemption? And if you are having a hard time distinguishing between the noun and verb forms of "condition," life may hold many surprises for you. As to your last comment, "this is pure nonsense," well, I'll leave to others to judge how persuasive this comment is. If they would like me justify my position to them I would be happy to. It would seem though that the exchange between you and I has degenerated to quibbling, and really is not the reason that I post to this site.

Should the opportunity arise for us to engage in a thoughtful and respectful back-and-forth, I would be happy to do so. Best to you.
3.21.2008 8:23pm
Bert Campaneris (mail):
Folks: As you can tell, there's much I disagree with Lithwick about. But there's no need for name-calling here; let's keep the discussion substantive, rather than just throwing around insults.

Eugene, you are right, of course, and I will certainly follow your request an apologize for my previous effort. However, to be fair, Ms. Lithwick wasn't particulary interested in substantive discussion and seems pretty comfortable insulting the opinions of others. As such, its understandable that people respond in kind. However, per your request, such people should avoid doing it here.
3.21.2008 8:27pm
MarkField (mail):
Can anyone point me to any evidence whatsoever that any colonist alive in 1791 had ever even seen a grizzly bear, much less fended one off with his (or her) musket? Even the bears' historical range never took them east of the Mississippi River.
3.21.2008 8:34pm
Jeffery W Wilson (www):
Am I alone in not understanding the logic in Prof Doug Kmiec's piece in Slate?
3.21.2008 8:58pm
z9z99:
Jeffery W Wilson:

In my opinion, Prof. Kmeic is trying to insinuate that there is a "natural law" interpretation that resuscitates the "obsolete" Second Amendment. I don't think that his argument is very persuasive.
3.21.2008 9:10pm
Clayton E. Cramer (mail) (www):


Massachusetts had a law banning the keeping of loaded firearms inside of cities due to risk of fire.


This was an astonishingly poor analogy made by Justice Stevens. Only the most truly diehard of the NRA argue that the government has no place in regulating firearms. The government might ban a public protest meeting on a rickety bridge, but that doesnt touch on the 1st Amendment.
It isn't clear that the law applied to handguns, however, which were not included in "fire-arms" in that period.

The same law also prohibited keeping your cannon, mortars, and howitzers, loaded in town. Clearly, the Framers were supporters of restrictive gun control. They just forgot to do anything about all those privately owned artillery.
3.21.2008 9:12pm
Don Meaker (mail):
Keep in mind that Title 10, Section 311 makes nearly all men between 17 and 45 members of the militia, women who are members of the National Guard, and men with prior service as an officer to age 65.

The militia need not be state regulated, and the unorganized militia would reasonably be less regulated than the organized militia. In fact the militia units in DC were crucial to the Inauguration of President Lincoln.

A right to arms would suggest that strict scrutiny should be given to regulations that inhibit keeping and bearing arms with military calibers, such as .30/06, 7.62x51mm, 5.56x45mm, or .30/40Krag, or pistol rounds such as .45Colt, .45ACP or 9mm Parabellum. One could even make a point that 7.62X54R would be protected, as that was issued to US Army units in the first world war.
3.21.2008 9:12pm
wuzzagrunt (mail):
MarkField wrote:
Can anyone point me to any evidence whatsoever that any colonist alive in 1791 had ever even seen a grizzly bear, much less fended one off with his (or her) musket?

Possible but unlikely. Wolves, catamounts, and black bears were common in (I believe) all of the colonies. Any one of those critters could pose a lethal threat to human life.

Is this specific point crucial to interpreting the 2nd Amendment?
3.21.2008 9:16pm
Don Meaker (mail):
Privately owned crew served weapons were presumed by the Article 1 provision that suggests that all Congress has to do is issue a letter of Marque and Reprisal, and the crew served weapons would suddenly be available to serve the national interest.
3.21.2008 9:16pm
PersonFromPorlock:
Mark Field:

There's bears and 'bears', and I imagine most American cities are well supplied with the latter.
3.21.2008 9:18pm
Clayton E. Cramer (mail) (www):

Was their any attempt to ban the private ownership of guns while the framers of the Constitution were still alive?
Not for white people. The 1837 Georgia statute struck down in State v. Nunn (Ga. 1846) is after the last of the Framers has died.
3.21.2008 9:20pm
Clayton E. Cramer (mail) (www):

I have to credit Lithwick here, she goes to the weakest point in Scalia's argument, of course any rational gun control scheme is going to keep arms out of the hands of Scottish Highlanders. But just as there is an valid exclusion for felons, well how is wearing a kilt all that different?
It is the right to bare arms, not bare legs!
3.21.2008 9:23pm
mrbeezy (mail):
Prof. Kmeic claims the purpose of the 2nd:
what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready. BYOG
Apparently since that purpose in not relevant to the current time period the 2nd is obsolete and can be properly ignored since repeal would presumably be inconvenient given the high percentage of gun nuts in the population.

Also Prof. Kmeic seems to believe that if the 2nd were to have a self defense purposee it would have said so.

Also Prof. Kmeic claims that "the people" is a collective term rather than individual. Just how that fits in with BYOG is rather puzzling.

One simple refutation to the Prof. Kmeic illogic is this: who is to say that at some point in the future BYOG would become a reasonable method for ensuring national security? After all it can hardly be argued that armed insurgents pose no challanges to modern conventional militaries. What would that argument look like: Americans are less capable than Iraqi?
3.21.2008 9:41pm
Bob from Ohio (mail):
The grizzly issue is of course at the core of any discussion of the right to bear arms. Kudos to Justice Kennedy.
3.21.2008 10:00pm
Dahlia Lithwick Is An Idiot (mail):

But my hypothetical was not "Does it make sense for the federal government to try to influence state gun laws through the spending power," it was "Can they?"


I already mentioned South Dakota v. Dole. I think your hypo fails its test. As another commenter suggested, the lawsuit you describe sound "frivolous."
3.21.2008 10:38pm
MarkField (mail):

Is this specific point crucial to interpreting the 2nd Amendment?


Damn, Bob from Ohio anticipated my pun.

Of course it's not crucial. I was just having a little factual fun at Justice Kennedy's expense. But if his legal history turns out to be no better than his natural history, then I can't hold out much hope for his opinion.


There's bears and 'bears', and I imagine most American cities are well supplied with the latter.


All too common these days, in fact. Of course, they might object to an interpretation of the 2d A which authorizes "defense" against them.
3.21.2008 10:51pm
z9z99:
DLIAI

I already mentioned South Dakota v. Dole.


Ah, now we are getting somewhere. Thanks for the reference. I think that the operative language in that case is


These cases establish that the "independent constitutional bar" limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly.


The whole point of this discussion is that, if the Supreme Court decision in Heller is somehow not extended to the states (which I think unlikely, but seems to be a remote hope of those who embraced a collective rights view), then there is the potential for Congress to meddle under the spending power.

The issue of whether or not you or I think that suit against gun manufacturers was frivolous (the other poster said the suit was frivolous, not my hypothetical), and I think it was, if Congress adopts the same philosophy as the city officials who brought suit, I'm not sure Dole gives much comfort:

In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.


Two of the three other elements of the Dole test don't seem to be seriously in dispute: as long as the condition is unambiguous and that it is related to "the federal interest in particular projects or programs," it gets a pass. I'm sure Ms. Pelosi will think of something.

This leaves the last element of the test. In Dole the question was whether the 21st Amendment prohibited Congressional meddling. Would the Second Amendment receive the same treatment, if it is interpreted as not applying to the states? Rehnquist's "mild encouragement" v. "coersion" distinction isn't very comforting.
3.21.2008 11:30pm
DeezRightWingNutz:

I see how highway money relates to drunk driving. I don't see how firearms restrictions relate to [subsidizing] health care for the poor.


I don't see how highway money relates to drunk driving. If anything, I'd see how emergency services money or health care dollars related to drunk driving, but not highway dollars.
3.21.2008 11:33pm
Dave Hardy (mail) (www):
Oh, and while we're on the topic, does anyone know how effective the DC gun law is? How many firearms related crimes occur in the City?

When I was working there in the 90's, during the Crack Wars, a guy in the office had a betting pool on when the city would break 300 homicides (i.e., a rate of about 50/100,000, when the rest of the country was at maybe 10/100,000. I forget who won, but the winning date wasn't in Nov/Dec..
3.21.2008 11:57pm
Elliot Reed (mail):
Isn't it too early to be accusing anyone of hypocrisy? The smart money seems to be on a 5-4 conservative-liberal split but we shouldn't be completely ruling out a surprise from the Justices.
3.22.2008 12:06am
Asher Steinberg (mail):
Isn't it just possible that the Second Amendment contains an individual right that, as Dellinger argued, is contingent on militia service? Or, isn't it possible that there's an individual right that's not contingent on militia service or even militia preparedness, but is subject to reasonable regulation? And if there are sound arguments on either side of the debate over how controlling the preamble is, or what the standard of review should be, isn't it fair to say that advocates of judicial restraint would prefer the view that would upset fewer existing laws? I don't necessarily read her article to be arguing for a collective right interpretation.

As for Lithwick, I think she's a great writer, is pretty good at reading which way the Court is leaning, which is what I thought people read Court reporting for, and that her bias is a fair price to pay for her wit. All things being equal, I'd like her work better if she were ever right about anything, but you don't read someone like her for incisive legal analysis.
3.22.2008 12:13am
Fuz (mail) (www):
"Was their any attempt to ban the private ownership of guns while the framers of the Constitution were still alive?"

I don't know whether this meets the criteria of a ban, but the then-legitimate Government attempted on 19 Apr 1775 to seize munitions being stored by the popular Militia of Massachusetts in Lexington and Concord.
3.22.2008 12:26am
one of many:
Well played Fuz, well played.
3.22.2008 1:20am
EIDE_Interface (mail):
Wouldn't it be novel if we respected 100% of the Constitution at all times? I mean what whack job could get away with that?
3.22.2008 1:47am
EIDE_Interface (mail):
Asher:

Then why read Dalia Lithwick at all? She's a useless Ann Coulterish hack.
3.22.2008 1:48am
Tony Tutins (mail):
Applying the statutory interpretation principle of Noscitur a sociis to the old Massachusetts statute, a "fire-arm" would have to be something like a cannon, swivel, mortar, howitzer, or cohorn on the one hands, or bomb, grenade, or iron shell on the other. Firearms that are neither cannons (rifled or smoothbore) nor bombs, would not seem subject to the statute.
3.22.2008 3:44am
Wrinkle-Free Pants (mail):
The issue of whether or not you or I think that suit against gun manufacturers was frivolous (the other poster said the suit was frivolous, not my hypothetical), and I think it was, if Congress adopts the same philosophy as the city officials who brought suit, I'm not sure Dole gives much comfort

The lawsuit was actually thrown out of court as frivolous, so the other commenter's point was that the Congressional spending power can't rest on a bogus legal basis. The Court in Dole agrees:


"Our decisions have recognized that, in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion." Steward Machine Co. v. Davis, supra, at 301 U. S. 590. Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective. When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact."



As was pointed out before, withholding all Medicaid funding harms poor people. Period. There is no justification for withholding the subsidy to all poor people simply because some patients in some state hospitals are gunshot victims. Perhaps if there were a disparate impact of gunshot wounds on poor people covered by Medicaid, that might conceivably be logical; even then, as noted above, it still wouldn't in fact be logical, as withholding the funding would not induce shooters to fire less. By contrast, in Dole, the amount of funding at risk directly and rationally relates to the problem Congress seeks to solve, and the State can choose to reject the offer. As a practical matter, a State cannot simply reject all Medicaid funding for all people. That would be coercion, even under Dole. Note that I am repeating the very same argument made before, before you had even bothered to read South Dakota v. Dole.


In Dole the question was whether the 21st Amendment prohibited Congressional meddling. Would the Second Amendment receive the same treatment, if it is interpreted as not applying to the states?

Your argument has nothing to do with the Second Amendment at all. The Second Amendment is not a basis for Congressional legislation. It is a limitation on federal power. Not a grant to meddle in state affairs.

Rehnquist's "mild encouragement" v. "coersion" distinction isn't very comforting.

Only if you are discomforted by reason itself.
3.22.2008 6:26am
Stephen Roth (www):
A question that I've never seen a satisfactory answer to:

If the second amendment right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?

Steve
http://trueconservative.typepad.com
3.22.2008 12:40pm
PersonFromPorlock:

If the second amendment right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?


Why is freedom of the press mentioned in the same Amendment at freedom of speech? Could it be that freedom of speech applies only in the context of publication? ;^)
3.22.2008 1:37pm
z9z99:
Wrinkle Free Pants

As was pointed out before, withholding all Medicaid funding harms poor people

ALL Medicaid funding? Show me where I said this. It is obvious that you are more interested in arguing with what you wish I had said rather than what I actually did, so actually, you are arguing with yourself. (As is the case with you bringing up the non-sequitur of "increasing civil damage awards in tort cases." Where did you get that?)

So here's a point for you to morph into an point that you you would like it to be rather than what is:

Is the twenty first amendment a basis for congressional legislation?


Perhaps if there were a disparate impact of gunshot wounds on poor people covered by Medicaid, that might conceivably be logical; even then, as noted above, it still wouldn't in fact be logical, as withholding the funding would not induce shooters to fire less.


O.K. I get it. You're not serious. Anybody who can't point out the flaws in this to you is free to pick up the argument, and you can amuse yourself at their expense.
3.22.2008 2:13pm
z9z99:
Oh, one more thing Wrinkle Free Pants, the Chicago suit was not thrown out because it was "frivolous." See if you can guess where this language is from:


In our view, plaintiffs' complaint sufficiently pleads facts that, notwithstanding actual knowledge that the guns would be brought into Chicago and used in crimes, the manufacturers, distributors, and dealers failed to alter their actions, thereby creating a public nuisance."
3.22.2008 2:37pm
MarkField (mail):

Why is freedom of the press mentioned in the same Amendment at freedom of speech?


That's not a real answer. They mentioned freedom of the press because otherwise there was a risk of inclusio unius, exclusio alterius. That's NOT why the militia is in the 2d A.
3.22.2008 3:54pm
Gerard (mail):
The Second Amendment ensures the ability of the People to occasionally freshen the Tree of Liberty with the Blood of Tyrants.

Fortunately, we have not had to do this in over a hundred years, but the potential must remain.
3.22.2008 4:06pm
Doc W (mail):
"If the second amendment right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?"

I posted on this at the end of another thread recently. So here goes another late statement:

1. The term "militia" was not used in 18th century parlance only to mean organized military units under government control. It referred to an armed populace or citizenry that could be called on to serve. Congress around 1800 even offered a definition of the militia along those lines.

2. The term "well-regulated" was used in a way that is absent or rare now, to mean "well-coordinated" or "well-operating" or "effectively working."

From the above, what makes sense of the militia clause is the following: the right of the people to keep and bear arms serves the purpose of maintaining an effective militia, that purpose being the security of a free state.

The attempt to draw a sharp line between the militia on one misguided. Citizens might be called on to serve in organized militia units. But when armed citizens defend themselves, their homes, and their families or come to the aid of their neighbors against attackers, they are also serving the purpose of a militia. A salient example would be when one or more armed citizens stops one of those mall shootings or campus massacres.

No interpretation that I've heard, if it uses the militia phrase to negate the individual right, is plausibly consistent with the very existence of the Second Amendment in the Bill of Rights.
3.22.2008 4:16pm
Doc W (mail):
Sorry--"The attempt to draw a sharp line between the militia on one HAND AND PRIVATE SELF-DEFENSE ON THE OTHER IS misguided."
3.22.2008 4:20pm
Joe -- Dallas, TX (mail):
Hypocritical conservative justices - reminds me of a comment from barbara streisend years ago when she called conservitives hypocritical for supporting the death penalty but opposing abortion (as if killing the guilty was worse than killing the innocent)
3.22.2008 4:30pm
Tony Tutins (mail):

If the second amendment right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?

According to an online list of source material compiled by a Professor Volokh, at the time of the Bill of Rights, the well-regulated militia comprised either the body of the people trained to arms, or the body of the people capable of bearing arms. Substitute "an armed populace" for the word "militia," and all will be clear.
3.22.2008 5:33pm
PersonFromPorlock:

They mentioned freedom of the press because otherwise there was a risk of inclusio unius, exclusio alterius.

There you go: they mention "the right of the people" for the same reason.
3.22.2008 8:32pm
MarkField (mail):

There you go: they mention "the right of the people" for the same reason.


One of us is confused, and I'm honestly not sure which one.
3.22.2008 9:01pm
mrbeezy (mail):
"the people" = everybody

"militia" = the people who keep and bear arms

"well regulated" = irregular but capable of approaching regular military with regard to effective armament
3.23.2008 1:18pm
M-K (mail):
Pardon me if this has been mentioned. (It's late and I don't have time to read through all the posts . . . before I forget what I wanted to say.)

The "Right to Keep and Bear Arms" is distinct from the Second Amendment and existed before the Constitution. The Second Amendment incorporated this pre-existing right (see Blackstone and the Parker decision), which included personal defense, as from frontier wolves. So, yes, the Second Amendment guarantees the right to arms for that use as well as all traditionally legal uses. For the first time, however, the right was also linked to militia readiness.
3.24.2008 12:11am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 03/24/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
3.24.2008 3:07pm
Randy R. (mail):
Joe Dallas: "Hypocritical conservative justices - reminds me of a comment from barbara streisend years ago when she called conservitives hypocritical for supporting the death penalty but opposing abortion"

Yeah. Almost as funny as all though 'pro-family' politicians who are closeted gays or otherwise cheating on their wives.
3.24.2008 3:43pm
Rob Blaine (mail):
> 'Almost as funny as all tho[se] 'pro-family' politicians who are closeted gays or otherwise cheating on their wives'

Definition of "sexual harassment": unwanted sexual advances made to a woman by a male who is not a pro-abortion politician.
3.24.2008 5:17pm