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Akhil Amar on Heller:
In the Supreme Court issue of the Harvard Law Review, Akhil Amar has a case comment on DC v. Heller that begins in this amusing way:
  Well, the show sure ended with a bang. On the last day of the Term, the Court — for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent — wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense. Experts began parsing District of Columbia v. Heller within hours of the Court's pronouncement. Over the ensuing weeks, sophisticated commentary blossomed in a rich profusion of blogs, wikis, posts, threads, and chats. Now, nearly five months after the decision, does anything remain to be said? In the Internet Age, does anyone still read law reviews? They seem so twentieth-century.
  Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article. In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles — more than double the article count of any other legal periodical.
John Moore (www):
What's scary is when they cite foreign law as a precedent, preferring it to the US Constitution.
11.25.2008 1:59am
Commonsense Comment (mail):
What's scary is that Amar is still making a Ninth Amendment argument. I'll have to check on some of his history: are the Third and Fourth Amendments really primarily concerned with the interests of women? They seem rather generally phrased to me and more concerned with the home and privacy interests there than to deal specifically with gender. But I do note Amar steals Orin's argument about what "supreme" in Art. III means, without attribution.
11.25.2008 2:02am
Tom Perkins (mail):
Amar writes:


But in real life the 1939 Court case upheld a gun control ordinance,


Didn't the Court in Miller in fact merely send the issue back to the lower courts for an adjudication which--owing tot he death and absence of the defendants--never took place? The NFA was not upheld in Miller, it simply wasn't struck down or it's constitutionality addressed.

Other than the implication that the constitutionality of the NFA was void if it controlled weapons useful to the militia; and since it does that, it isn't?

Yours, TDP, ml, msl, &pfpp
11.25.2008 6:49am
cboldt (mail):
-- Didn't the Court in Miller in fact merely send the issue back to the lower courts for an adjudication which--owing to the death and absence of the defendants--never took place? --
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Yep. SCOTUS, in Miller, would have quashed the indictment and declared the federal tax on short barrel shotguns an unconstitutional infringement in light of the 2nd amendment, on a factual showing that short barrel shotguns bear a relationship to a use by military units.
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Akhil Amar also writes:
On the last day of the Term, the Court - for the first time ever ... wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense.

I find it amazing that such blatant intellectual dishonesty obtains any respect whatsoever. But there he is, well paid to teach con-law and fill impressionable minds with mush.
11.25.2008 7:46am
Conrad Bibby (mail):
I'm disappointed that style of writing is now considered acceptable for a major law review. It seems like the kind of thing that you'd expect to read in an op-ed column of a college newspaper.
11.25.2008 7:52am
Brian Mac:

I'm disappointed that style of writing is now considered acceptable for a major law review.

Surely something can be done to defend their proud tradition of impenetrable jargon, sophistry, and 100-pages-where-10-would-do?
11.25.2008 8:37am
phants (mail):
IANAL - Yes, the legal definition of pardon does include the ability to grant such before conviction or even trial.
However it appears to me that there are logical problems here:

But scholars disagree about whether the current president could preemptively pardon members of the intelligence community without naming them and specifying the conduct for which they would receive amnesty.

1) Without specifics of identity and conduct, does this not grant blanket immunity for any person claiming to be a member of that category or class?

2) The effect of such pardon is actually a nullification of the law as it applies to "a category of certain persons" and/or "any acts of that membership" (unspecified conduct)

3) The pardon itself, since no pardon need be made for an innocent person, state by inference, a status of guilt? Shouldn't the pardon then include ellocution, as in a plea deal?

4) Is this grant a blatant admission, on the part of the one granting the pardon, acknowledgement that a criminal act has taken place; which raises the possibility of complicity or prior knowledge by the person requesting such a pardon? How did he otherwise know that a pardon was needed...?

Might there be a need for all such not-named individuals that are members of the "financial community."
11.25.2008 9:38am
emsl (mail):
Two minor points -- First, I am with Brian and not Conrad on the style issue. There is no reason that law review writing must be painfully dull. At some level, the point is for people other than tenure committees to read the articles. In the interests of full disclosure, I was an editor of the HLR and no doubt contributed to "impenetrable jargon, sophistry, and 100-pages-where-10-would-do" but I have reformed since I now generally write articles for practitioners who won't read that style.

Second, while I think Heller was correctly decided, there is little doubt that it is controversial. Prof. Amar is entitled to his views. He is one of the most thoughtful Con. Law professors currently teaching and writing.
11.25.2008 10:11am
krs:
footnote 6 is an understatement.
11.25.2008 10:12am
krs:
There are some professors who are capable of avoiding the "impenetrable jargon, sophistry, and 100-pages-where-10-would-do" style without mailing it in like this.
11.25.2008 10:13am
loki13 (mail):
krs-

Wow, did you get much past footnote 6? What do you think of his evisceration of Steven's methodology? What about the possible use of the 9th Am. and the Reconstruction-era amendments. I hardly think this is 'mailing it in'.
11.25.2008 10:23am
OKY:
Seems like the increased reliance on law review articles is a function of increasing reliance on law clerks. Not to mention the increasingly influential DC appellate shops (see Lazarus) who can pay associates to sift through law reviews and put them in the briefs.
11.25.2008 11:23am
Serendipity:
Yeah, wow is write. He pretty much says Stevens has no clothes.
11.25.2008 11:31am
Serendipity:
*right
11.25.2008 11:31am
DiverDan (mail):
Once I got past the 2+ pages of self-congratulatory BS about how wonderful the HLR is, I found much of the article both entertaining and informative, a fairly rare combination in Law Review Articles. However, I do think that he overstates what Miller really held, though he did seem to come down on the side of Scalia's take on Miller rather than the Stevens' side. I also think his view on the "intermediate" reading of the Second Amendment (requiring a greater nexus between the scope of the right protected and the stated purpose of a "well regulated militia) is not well supported by his argument, and that his reading of the Ninth Amendment as sort of a Constitutional Steroid, acting to strengthen and broaden all of the enumerated rights (an innoculation against a stingy approach to any of the first 8 Amendments, if you will), is a bit far-fetched, even if I like the result. But at least he provides a rationale for use of the 9th Amendment, something the Court hasn't managed to do in two centuries (despite the opportunities in cases like Griswald and Roe v. Wade -- those cases would have been much easier to swallow had the Court relied upon some actual text in the Constitution, instead of rooting around looking for emanations from the shadows of the penumbras). I did like his analysis of Stevens' dissent in Heller; I myself thought that Stevens' arguments were completely hollow, and I was really disappointed that he was able to get 3 other Justices to sign on to that rubbish.
11.25.2008 11:40am
Yankev (mail):

I'm disappointed that style of writing is now considered acceptable for a major law review. It seems like the kind of thing that you'd expect to read in an op-ed column of a college newspaper.
Or the ABA Journal.

I am with krs. There is no reason for law reviews to go from one extreme of bad writing to the other.


What about the possible use of the 9th Am. and the Reconstruction-era amendments. I hardly think this is 'mailing it in'.

Perhaps not as to content, but certainly as to clarity, readability, econonomy of words, and elegance of expression.


On the last day of the Term, the Court — for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent — wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense.
Sorry, Loki, this sentence would not get past a competent 6th grade teacher. Does the professor mean to tell us that the court wielded the Second Amendment for similar purposes in the past, but earlier in the term? Or by more than a single vote? Or over a less than vigorous dissent?

Don't force the reader to guess whether the one-eyed one-flying purple people eater went hungry when there were no flying purple people to eat, or whether he ate purple people whether or not they flew.
11.25.2008 11:43am
Yankev (mail):
Sorry, that should have been one-eyed one-horned flying purple people eater.
11.25.2008 11:46am
loki13 (mail):
Yankev,

I hardly think quoting an excerpt that was in the OP shows you read the article. While I think the beginning has a slightly theatrical feel to it (perhaps owing to his exposure in more popular works such as America's Constitution- A Biography) I think the rest is a solid academic look at the case (albeit from the conceit of framing it in terms of HLR, but look where it was published).

As for your comprehension of the sentence- I found it perfectly clear (perhaps because of my previous knowledge, but that's his audience) and, moreover, was a dramatic way to frame the issue since he essentially demolishes the dissent.

If you have written a better piece on Heller, please point it out to us for comparison purposes.
11.25.2008 12:53pm
zippypinhead:
I found this to be a fascinating piece of broad-brush Constitutional analysis and extrapolation from the Heller opinion. Fascinating, even though I don't necessarily agree with all of it (especially the Ninth Amendment advocacy). But frankly, the only way to read it without making all reasonable and prudent non-Harvard alumni's blood pressure spike would be to first delete each and every sentence with the words "Harvard" or "HLR" in it. Good legal analysis hung on a rather self-centered framework tends to degrade fairly badly.

Best of all, excising the word "Harvard" would have cut this noxious phrase: "...Harvard's greatest gift to modern constitutional theory and practice, Professor Laurence Tribe."

Yuck...
11.25.2008 1:01pm
JA (mail):
Good article. Thanks.
11.25.2008 1:57pm
krs:
loki13, no I didn't. I found the harvard masturbation annoying enough that I just stopped and figured he didn't have anything substantive to say. Apparently I was wrong and the article might be worth picking up again later.
11.25.2008 4:53pm
FredM:
I didn't go to Harvard, but I found the Harvard pomposity bemusing, like a daft old uncle.

On the other hand, Yankev's pomposity is irksome.

Good article. Thanks.
11.25.2008 5:10pm
Thales (mail) (www):
"Akhil Amar also writes:

On the last day of the Term, the Court - for the first time ever ... wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense.


I find it amazing that such blatant intellectual dishonesty obtains any respect whatsoever. But there he is, well paid to teach con-law and fill impressionable minds with mush."

Um, how is the quoted statement not true, and in any case how is it intellectually dishonest when that is precisely what most people believe to be the import of Heller, agree or disagree?
11.25.2008 5:20pm
cboldt (mail):
-- Um, how is the quoted statement not true, and in any case how is it intellectually dishonest when that is precisely what most people believe to be the import of Heller --
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Akhil Amar used the phrase "federal gun control measure" to describe a local statute that only applied in DC. On a technicality, local rule being what it is, the DC-passed ordinance might be considered "federal" law, but that's a dishonest characterization. Congress had no hand whatsoever in writing the law that was ruled to be in breach of the 2nd amendment, and the law itself had force only in the territory of the District of Columbia.
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Akhil Amar used the phrase "to declare a robust individual right to use firearms for self-defense." A robust right, eh? Subject to reasonable restrictions, in the instant case, at most, the so-called "robust" right attaches only when one is in one's own home, and then only for people who petition the government and meet the personal requirements and weapons limitations.
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If most people agree that Heller dispatched a federal law, and instituted a robust right to the individual use of firearms for self defense, well, that speaks to the standards that most people apply to the words "federal" and "robust." Count me out of that group of "most people." I found that sentence by Akhil Amar to be a deeply flawed -- intellectually dishonest -- characterization of Heller.
11.25.2008 5:48pm
Yankev (mail):

I hardly think quoting an excerpt that was in the OP shows you read the article.
I have printed it to read it Thursday. I did not think the tone of the opening was helfpul. Whether I have written anything better is hardly relevant.

I think the rest is a solid academic look at the case
Okay, I will read it and see.


a dramatic way to frame the issue since he essentially demolishes the dissent.
Which I will look forward to.
11.25.2008 5:52pm
cboldt (mail):
"And against the weight of circuit precedent" is another intellectually dubious proposition, where it refers to how the various Circuits misconstrued Miller (in harmony no less), and SCOTUS, in Heller even misconstrues Miller. "Upheld Miller's conviction," yeah, sure. Whatever.
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I must say, it's safe for SCOTUS (and Akhil Amar) to engage in that sort of dishonesty, because very few people catch on. But Akhil Amar has read Miller. He knows what it says. He knows that the various Circuits have mischaracterized and misconstrued Miller. He know that "against the weight of circuit precedent" is also a measure of how well the Circuits have(not) honestly construed Miller. He knows that the Heller Court did not defend its Miller decision - instead, it stood silently by so it could be dealt a death by a thousand cuts.
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But the impressionable minds will read Heller, and skip Miller. They will uncritically accept the pronouncements of the likes of Akhil Amar as "truth." And their minds will be filled with mush.
11.25.2008 6:07pm
loki13 (mail):
cboldt,

I'm not sure what your problem is. While we could argue for days over the issue of how 'federal' the ordinance in question is, I don't think it is an intellectually dishonest characterization. The entire reason the Heller case was forced in the way it was by its proponents is that it *wasn't* a state case, allowing them to sidestep the issue of incorporation until another day.

As for 'robust' right- there are some who figure that the 2d Am. isn't robust until it allows for mentally ill felons to carry concealed surface-to-air missiles, but for most, the idea that SCOTUS took the case and recognized the right (for, arguably, the first time) makes this a fair characterization. Any right not subject to rational basis review is, in a sense, robust.

Yankev &KRS- I think you'll be pleasantly surprised by the article. I happen to think the HLR framing was a little too cutesy, but it was his choice to bring the more important substantive issues to light. Besides, it was published in the HLR so I think there was some utility (if less pleasure) in Prof. Amar's choice.
11.25.2008 6:11pm
loki13 (mail):

I must say, it's safe for SCOTUS (and Akhil Amar) to engage in that sort of dishonesty, because very few people catch on. But Akhil Amar has read Miller. He knows what it says. He knows that the various Circuits have mischaracterized and misconstrued Miller. He know that "against the weight of circuit precedent" is also a measure of how well the Circuits have(not) honestly construed Miller. He knows that the Heller Court did not defend its Miller decision - instead, it stood silently by so it could be dealt a death by a thousand cuts.


That's a wonderful argument- but not the truth. While you might think that all the Circuits (with possible exception of the 5th, and recently) misconstrued Heller, that is neither here nor there. The point is that *this* is how Heller has come to be read -- to argue to the contrary position is like arguing against Carolene N.4- it's what is reading of the case, and what that remained undisturbed for quite some time.
11.25.2008 6:15pm
cboldt (mail):
-- I'm not sure what your problem is. --
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I think you mean that you disagree with my take. As is your right. Whazzup with calling it a "problem?"
11.25.2008 6:16pm
cboldt (mail):
-- While you might think that all the Circuits (with possible exception of the 5th, and recently) misconstrued Heller --
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Did I type Heller? I meant to type Miller.
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So, your argument is that the more the Circuits get it wrong, the more legitimate the error. That's pretty much what I say happened - so what's your problem?
11.25.2008 6:18pm
CDR D (mail):
I skimmed through the forty some pages of Professor Amar's HLR article, and it appears that he is trying to play both sides against the middle. He demolishes Stevens, and, to a lesser extent, he minimizes Scalia's opinion.

I guess I don't understand his view with regard to his "one, two, three" possibile outcomes of a 2A determination.

I may have missed it, but although the Professor dealt with *Cruickshank* and *Miller* in his article, I didn't see any treatment of the dicta in *Presser*, where the Court stated:

"It is undoubtedly true that ALL CITIZENS capable of bearing arms constitute the reserved military force or reserve militia of the United States as well of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the PEOPLE from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the PEOPLE from performing their duty to the general government." (emphasis added)
11.25.2008 6:28pm
loki13 (mail):
cboldt,

The error was mine; I meant to type Miller, not Heller. As to your other point, there is a difference between the law as it is and the law as you believe it should be.

For example, I think the Court has gotten the whole incorporation thing bass-ackwards since Slaughterhouse (and Cruikshank). I also think they made a wrong turn at Hans (for 11th Am. purposes) and their jurisprudence hasn't been right ever since. But that doesn't reflect what the law actually *is*.

You (along with many 2d Am. proponents) have a reading of Miller that is different than our courts have ever taken it to mean. While I think it is a credit to get the Court to revisit the 2d Am., I also think you are incorrect to call Prof. Amar 'dishonest' as you did since he was writing not just about what Miller meant at the time (which is arguable, and not as much to your liking as you wish) but about how it has been read since then. For you to assert that your reading of Miller is correct, and other people are wrong for believing the majority opinion (as even Scalia in Heller acknowledged) is uncalled for. That is your problem.
11.25.2008 7:56pm
cboldt (mail):
-- For you to assert that your reading of Miller is correct, and other people are wrong for believing the majority opinion (as even Scalia in Heller acknowledged) is uncalled for. That is your problem. --
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I'm not talking about a mischaracterization in the nature of "protects an individual right" vs "protects a collective right." I'm talking about making the assertion Miller was convicted and his conviction was upheld, or that Miller stands for the proposition that militarily-useful individually-operated weapons are outside the ambit of the 2nd amendment, or that short barrel shotguns are not militarily useful.
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If you, having read Miller, were to assert that Miller was convicted, or that Miller stands for the proposition that a prohibition on the possession of short barrel shotguns was fully vetted and upheld "not an infringement under the 2nd amendment," then I would accuse you of intellectual dishonesty too. Miller is a short case, and easily understood by a 1L, and indeed, by most laypeople.
11.25.2008 8:10pm
cboldt (mail):
-- But that doesn't reflect what the law actually *is*. --
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BTW, I am not arguing what the law *is*, I am grousing that the Courts are engaging in outcome-oriented intellectual dishonesty, and that various intellectuals, e.g., Akhil Amar, are enablers.
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As the Courts have the superior firepower, my opinion is worth spit. But that does not mean my observations and summaries of findings, legal posture, and legal outcomes are incorrect.
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Separately, what do you think of the federal law that prohibits the erection of a building taller than adjacent street plus 20 feet?
11.25.2008 8:20pm
cboldt (mail):
taller than width of adjacent street, plus 20 feet (DC code, aka "federal law" in Akhil Amar and loki3 parlance)
11.25.2008 8:23pm
loki13 (mail):
cboldt,

Then you are clearly blinded by your a priori beliefs. I read Miller as a 1L, and found the interpretation most courts have given to it persuasive (although I also though that Emerson was a permissible reading of Miller).

We learn to see shades of gray during 1L- perhaps you missed that class.

(Also, if you don't understand why this is categorized as Federal law for the purposes of this argument, you either don't understand why Heller was brought in DC or are being purposely disingenuous. It's a lot easier to get Cert if SCOTUS can dodge the incorporation issue for now.)
11.25.2008 8:43pm
cboldt (mail):
-- and found the interpretation most courts have given to it persuasive --
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What interpretation is that?
How does my interpretation diverge from the interpretation of most courts?
In the Miller case, what are these "shades of gray" relating to "conviction," and what SCOTUS found regarding the relation of a short barrel shotgun to the functioning of a well-regulated militia?
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-- Also, if you don't understand why this is categorized as Federal law for the purposes of this argument, you either don't understand why Heller was brought in DC or are being purposely disingenuous. --
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Oh please. You damn well understand my complaint. Akhil Amar was making a fairly casual summary of the Heller case, and if he was honest about it, he would have said the Supreme Court struck down a DC city ordinance. I'll grant that the ramification of this difference aren't significant, but calling the law in question a "federal law" is misleading. If you think the label "federal law" is not misleading, well, 'll keep that in mind when I read your output.
11.25.2008 8:58pm
loki13 (mail):
cboldt,

My writing is in a different area, as I don't have a pony in the 2d Am. fight either way. Nevertheless, I think the categorization is fair given the substantive issue before the court (whether this was a straight 2d Am. case or a 2d through the 14th as it would need to be for incorporation). This is an issue that is of no small import, so I think it would be a worse statement to say this was merely a 'city ordinance', as that would be covered by incorporation everywhere EXCEPT DC. The difference that matters in Heller is whether they are taking a law based on Federal power (2d only) or on State power (2d via 14th). So I would view it in the same was if he wrote about a case before SCOTUS involving, say, Chicago being based on the State law (as that is where the power is derived, and would present a different issue before the Court).

I have yet to see anything of interest in your posts that wasn't either in the OP or the comments, so I can take it as a given you never read the article. Uninformed bashing is fun, but I usually come to this blog for a higher quality of comment, and commenter.
11.25.2008 9:12pm
cboldt (mail):
-- I have yet to see anything of interest in your posts that wasn't either in the OP or the comments, so I can take it as a given you never read the article. Uninformed bashing is fun, but I usually come to this blog for a higher quality of comment, and commenter. --
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Whether I read the article or not (I did read it) is irrelevant to our discussion. I accept that you disagree with my opinion that the statements of Akhil Amar is intellectually dishonest.
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I usually ignore your shit too, so we're even on that count.
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Noted that you haven't mounted a substantive response to my specific questions.
11.25.2008 9:20pm
loki13 (mail):
cboldt,

I manage to ignore your postings without resorting to scatological references. I recommend trying it sometime.

I have refuted your rationale for Prof. Amar being 'dishonest'. I think you are incorrect in both the instances you cite:

1. WRT to the nature of it being a "Federal" law (this is for the purposes of incorporation, which was preeminent for getting cert in Heller).

2. WRT to "robust right", the idea that they struck down the ordinance, found an individual (as opposed to collective) right, and found that there was a higher standard than rational basis classifies it as one of the few "robust" (non-rational basis) rights we have.

That you disagree with me doesn't mean I haven't already mounted the substantive responses, supra. Considering that Prof. Amar has forgotten more about ConLaw than either you or I will know, and that he is a leading proponent of the 2d Am. being incorporated via the 14th, I am not sure what your problem is. Of course, it would help if you read the effin' article and were familiar with his scholarship.
11.25.2008 9:52pm
cboldt (mail):
-- I have refuted your rationale ... --
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All you've done is redefine "robust." As both our definitions are supra, we can leave readers to pick the definition that suits their sense of "robust individual right to use firearms for self-defense," which you and Akhil Amar assert presently exists in the District of Columbia.
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The specific questions that are still hanging are the ones that would provide the missing foundation for your "you are clearly blinded by your a priori beliefs. I read Miller as a 1L, and found the interpretation most courts have given to it persuasive ... We learn to see shades of gray during 1L- perhaps you missed that class." Clearly tangential to Akhil Amar's intellectual honesty, but relevant to yours.
11.25.2008 10:16pm
jim47:
Thanks for the link. I found the article persuasive, though since I am on board with much of Amar's constitutional theory already, I guess that's not surprising. I thought the tone of writing was just fine; I want something casual when I have to read it on an LCD.
11.25.2008 10:21pm
loki13 (mail):
cboldt,

I am afraid the burden lies with you. Whether I choose to quote CJ Burger, or look to a long line of cases up to and including Silveira, my interpretation is the same as most of the legal community prior to Heller. Perhaps you should re-think using 'dishonest' to characterize those who have good-faith beliefs that are different from yours; while you might sacrifice some hyperbole, you would gain in measures of your own honesty.

The irony, of course, is that you use such language while criticizing one of the people, Prof. Amar, who has done so much to advance originalist interpretations and a focus on individual rights interpretations of the 2d Am. I guess the mark of a true ideologue is the character assassination of those who don't agree with every single position you have. I would love to place your scholarship on the 2d Am. and compare it to Amar's.
11.25.2008 11:27pm
cboldt (mail):
-- Perhaps you should re-think using 'dishonest' to characterize those who have good-faith beliefs that are different from yours --
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I make an effort to reserve the label "dishonest" for those who make deliberate errors in statement of fact, or illogical connections between fact/law and outcome. IOW, absence of good faith.
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The irony is compounded, because I think Scalia is likewise guilty of intellectual dishonesty, with his "Miller was convicted." It takes little in the way of scholarship to detect statements that are so clearly erroneous.
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My revulsion to Prof. Amar's assertion that there exists in DC a "robust individual right to use firearms for self-defense" looks at the scope of the right as seen by the Court, and finds that scope less than "robust." Your argument substitutes a legal test (rational basis) for the scope under review. The jurisprudence is not on parallel, but one would not be inclined to call the right to free speech "robust" if it was limited to talking at home, but not in public, and justify that conclusion because "the right to free speech is not subject to rational basis review." Yet you use exactly that logic to defend the phrase "robust right" in the context of the 2nd amendment.
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As for the value of the conclusion "individual right," that is an amorphous quality in the hands of skilled jurists. See the dissent in Heller, which also finds an individual right in the 2nd amendment. You won't find me doing the happy dance because Stevens has "seen the light" and now finds what he calls an individual right. So too with Prof. Amar -- being the champion of "individual right," without more, is an unknown quantity. But I get some measure of the outcome he advocates from his characterization, Mr. Heller now enjoys a "robust right" to self defense. As long as he is at home. As long as he pays the fees. As long as he "checks out" in advance. And as long as his weapon is one from a small menu of government-permitted weapons.
11.26.2008 12:11am
cboldt (mail):
But in real life the 1939 Court case upheld a gun control ordinance ...


This is literally true, but misleading, because the upholding was conditional. The condition for upholding the section of the National Firearms Act of 1934 (the gun control ordinance) being if the weapon in Miller's possession and no relationship to a military use. This is a factual inquiry that no Court undertook.
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To cast Miller as a conclusive upholding of the NFA -- when easily discerned facts show that the logic of SCOTUS, if applied, would have found the NFA to be unconstitutional in light of the 2nd -- colors all conclusions that are based on "Miller upheld the NFA."

Miller's and lower courts' broad approval of gun control in the mid-twentieth century ...


See above. Miller didn't constitute "broad approval" in fact -- Miller was a "we don't know" decision, remanded for factual finding. The lower court's repeated misconstruction of Miller resembles the misconstruction by Prof. Amar by concluding, wrongly, that SCOTUS had unconditionally found the NFA to be constitutional.
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I do understand "how the law works," and I fully agree that the law is what the courts have said, and that courts have expressly upheld certain firearms laws. My point is that in this case, the upholding of laws takes advantage of the absence of an essential judicial finding in a past case. The law suffers a very real legitimacy issue when objective reality flies in the face of imputed judicial findings. Call it intellectual dishonesty, outcome-oriented jurisprudence, or whatever. It's the equivalent of saying a confessed killer isn't, because the police didn't Mirandize. Except here, the error is applied to a statute instead of to a person. Miller didn't uphold the NFA unconditionally, and to ignore the facts and procedure in the case is beneath honest scholarship.
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Not so much in the nature of intellectual dishonesty, but I find the following argument unpersuasive, for reasons stated.

The key to the textual puzzle is this: the otherwise stilted syntax of the Amendment, with its reference to the "militia" in the opening and the "people" in the closing, makes the most sense and becomes the least stilted when we read these two key nouns, "militia" and "people," as synonyms. ... Justice Stevens thus misread the word "militia." In 1789, when this word was used without the qualifying adjective "select," it ordinarily referred to the general militia — all men capable of serving, not just those in active service.


If the founders viewed the word "militia" as Prof. Amar asserts (and I believe he is correct), then the composition of the 2nd as posited by Prof. Amar would conclude, "the right of the [general] militia to keep and bear arms shall not be infringed." One point against the 2nd as posited by Prof. Amar is that the founders had three terms at their disposal, general militia (or just plain "militia"), "well-regulated militia," and "the people." They would not use "the people" if they meant "the [general] militia."
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Prof. Amar uses the fact that women weren't subject to being called up for military service as a grounds for excluding them from the protection of the second amendment; and yet for the men to give this power to the government seems to be as ridiculous in context as the non-sequitur objection (women aren't in the general militia) that he uses as the primary grounds to justify his interpretation - women were purposely excluded from the ambit of the 2nd amendment. And yet, the founder had at their disposal, and did not use the term "[general] militia" in order to effectuate the exclusion that Prof. Amar asserts.
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Check some history. Did women bear arms (outside of military defense) in late 17th century America? Did they defend the stagecoach? Were arms kept in the mans home, while the man was away but the woman was home? Could a woman own arms? Incidents of this nature would tend to show that the term "the people" was technical correct, and intended.
11.26.2008 2:09am

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