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Is Heller like Roe v. Wade? A reply to Judge Wilkinson:

Fourth Circuit Judge J. Harvie Wilkinson, III, is the author of a forthcoming article in the Virginia Law Review, Of Guns, Abortions, and the Unraveling Rule of Law. Wilkinson criticizes the Supreme Court's decision in District of Columbia v. Heller, and argues that the majority opinion is wrong for the same reasons that Roe v. Wade was wrong: both cases violated "judicial values," such as deference to legislative decisions, avoidance of political thickets, and federalism. The draft article has attracted much favorable attention from the media, including the New York Times, Washington Post, Associated Press, and George Will.

In a working paper now available on SSRN, Nelson Lund and I critique Judge Wilkinson's equation of Heller and Roe. Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III argues that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

After addressing the Roe analogy, our article examines Judge Wilkinson's stated rules of judicial restraint. We contend that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. Although the Wilkinson article is couched in the language of judicial restraint, it amounts to an endorsement of judicial lawlessness.

einhverfr (mail) (www):
IMO, the problem with Roe is that the court ended up trying to solve more issues than those which were directly before it. If Roe had come out more like Casey, I don't think it would have been that heavily revile.

However, Hellar is very much in line with my reading of other notable 2nd Amendment cases and simply abridges the tests in cases like Prosser rather than overruling them.

I also note that the same extreme of judicial restraint might have inevitably made important and helpful precedents like Brandenburg, Yates, and Engblom come out differently.
12.3.2008 7:16pm
Paul Milligan (mail):
"both cases violated "judicial values," such as deference to legislative decisions, avoidance of political thickets, and federalism"

If that were the standard by which SCOTUS operated, there would BE no SCOTUS. There would be NO ISSUE, NO LAW, that SCOTUS could rule on out of 'deference to legislatures', or 'avoiding potentially political issues'.

WIlkinson shows his complete and total disregard for the Consitution, and Balance of Power, by his position.
12.3.2008 7:21pm
OrinKerr:
Two thoughts.

1. I thought the "Judge Wilkinson would be against Brown v. Board" argument was pretty weak. First, as a matter of rhetoric, it seems more like an op-ed point than an argument for a law review. The consequences of a judicial restraint approach to constitutional law have been better discussed elsewhere: It seems like a cheap shot in an article that is really about Heller in particular. Second, as a matter of logic, my understanding is that you don't actually apply your chosen methodology to Brown to answer whether you think Brown was correct. Given that, the logical relevance of arguing about Brown in this article seems unclear. (Or at least I didn't see that in a quick skim.)

2. If you're going to accuse Judge Wilkinson of hiding his policy preferences in constitutional language, while Wilkinson is himself making an argument that *others* are doing the same, wouldn't it be helpful for you to state forthrightly that you either do or do not agree with Heller as a matter of policy? If you disagree with Heller as a matter of policy, then it strengthens your argument that you are being principled. On the other hand, if you happen to agree with Heller as a matter of policy, then the reader can fairly ask whether you, too, might be playing the same game. Normally I don't think such a self-declaration is helpful in an article, but it seems pretty relevant here.
12.3.2008 7:48pm
Oren:

The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not.

This is an obscene begging of the question -- you cannot just assert a matter like that as if it were plain fact. In fact, the contours of the protections granted by the 2A and 14A are precisely the matters under dispute. Even as someone that agrees that the 2A protects an iRKBA, (probably stronger than the Court's opinion in Heller) that is not some self-evident fact that you can assert without controversy.
12.3.2008 7:50pm
jb (mail):
I do not and have never understood why anyone would want deference to the legislature on issues of individual rights. What would be the point of having a constitution then? When government intrests conflict with individual autonomy the gov't should always have to meet strict scrutiny. I hear a lot of static around here about "black robed tyrants" etc., but I have never understood this either as they only have power to negate laws (usually a good thing) and no power to impose new law. This bears no relation to actual tyranny.
Yay Griswold, Roe, Heller, Lawrence
Boo Kelo, Raich, Morse
12.3.2008 7:57pm
Kendall McIntosh (mail):
This Judge Harve Wilkenson whom you quote should be out of a job, at least as a judge.

There is no "democratic destiny", no "judicial values" basis to deprive a citizen(s) of their constitutional rights by a local politicians decision. The only proper way to deprive a citizen(s) of their enumerated rights is through the changing of the constitution through the constitutional amendment process with the congress, president, and the state legislatures. The Supreme Court became the only place that this RIGHT could find protection from DC in DC v Heller.

Perhaps we should take a vote and decide judges should not have freedom of speech, religious expression, et al; then see how fast he runs to the courts for protection of his RIGHTS.

This guy has his head in the wrong location, and should not be a judge.

(I am not a lawyer, nor a judge,thank goodness.)

Kendall McIntosh

Payson, AZ

KendallMcIntosh@msn.com
12.3.2008 8:02pm
Soronel Haetir (mail):
Kendall,

A minor nit but the president is not involved in the amendment process. At least there is no formal role for such.
12.3.2008 8:06pm
einhverfr (mail) (www):
Personally I thought the question in Hellar was a fairly narrow one, whether state and local governments' rights to restrict gun ownership went so far as to allow an outright de facto ban. Yes, I know DC is *technically* run by the Federal Government, but IMO, this means Congress has full state legislature capabilities as regards DC (otherwise a gap in governance would occur which would be unacceptable). I note that court did not try to overturn past precedent here.

The need for a well regulate militia depends to some extent on private gun ownership. An outright ban on new gun owners seemed to my mind to raise legitimate new questions of constitutionality which past courts had not addressed.
12.3.2008 8:11pm
juris_imprudent (mail):
This is an obscene begging of the question -- you cannot just assert a matter like that as if it were plain fact.

Oren, the plain fact is there is language directly on point in one case, and a vacuum in the other. At best, abortion could be addressed under the 9th and/or 10th. Instead, it is rooted in a penumbra.
12.3.2008 8:11pm
GuestyMcGuesterson (mail):
Juris-- where's that direct language on integration?
12.3.2008 8:16pm
Simon Dodd (mail) (www):
JB:
I do not and have never understood why anyone would want deference to the legislature on issues of individual rights. What would be the point of having a constitution then?
It's point would be - and in our case, in its most important aspects is - to define and delineate the structures and processes by which law is to be made and applied. If your apparent supposition that the only purpose of a constitution is to protect individual rights, it would seem peculiar that virtually all of the individual rights guaranteed by our Constitution are found in amendments thereto. The Constitution's protection of individual rights were (in the main) afterthoughts and additions; that doesn't by itself diminish the force of those protections, but it certainly belies any claim that such protections were the primary purpose of the Constitution.
12.3.2008 8:23pm
Simon Dodd (mail) (www):
Sorry, I meant "its point would be" &c. Schoolboy error.
12.3.2008 8:25pm
einhverfr (mail) (www):
A quote from Wilkinson's post:
In those twenty-seven words, the Court found an individual, judicially-enforceable right—unconnected to military service—to keep and bear handguns at least for self-defense in the home.


Can anyone remind me what the definition of a "militia" was and who was required to furnish militia weapons?
12.3.2008 8:25pm
Josh644 (mail):
Juris-- where's that direct language on integration?


Guesty, Oren and juris were discussing Heller and Roe v. Wade, not Brown v. Board of Education.

To aid in following their conversation, I'll list the relevant posts:

1. Oren
2. Juris

Cheers.
12.3.2008 8:27pm
John (mail):
If you had named your article, "Why does judge Wilkinson support Jim Crow laws?" it might have attracted as much attention as his did.
12.3.2008 8:28pm
ReaderY:
Even if one disagrees with Heller, there is a specific constitutional amendment that specifically addresses a "right of the people to keep and bear arms." Even if one disagrees with the Heller court about the nature and scope of that right, nonetheless determining the meaning of this specific constitutional text is part of the court's job.

People can disagree about text, and one can't expect a court (or anyone) to always call things the right way. Even when the court makes a wrong decision, when the constitution clearly addresses the subject, it's done it's job. It may have done it well, maybe not so well, but the decision was its to make.

What makes Roe different is that nothing in the Constitution says anything at all about abortion. When the Court makes decisions on subjects that aren't addressed in the Constitution it's doing something other than its job. It's making a decision about something the states and the people never agreed was its to make.
12.3.2008 8:29pm
Cornellian (mail):
The purpose of the structure set up in our constitution is to protect minorities from the tyranny of the majority. It's not just the Bill of Rights protecting individuals that is geared to that end. It's also federalism, protecting the voters of California (for example) from voting to appropriate all the water in Colorado and claiming it's just democracy because California has more voters. It's the separation of powers between executive and legislative and their different terms of office, such that each can operate as a break against the passions of the moment that may motivate the other. Governmental power is divided as between the government and individual (Bill of Rights), between branches of the federal government (legislative, executive and judicial) and between federal and state governments (federalism) precisely because the founders thought too much power in one place was bad, even if that power could claim to have been elected by the majority of voters in the country.
12.3.2008 8:30pm
juris_imprudent (mail):
where's that direct language on integration?

There is no language on integration, and Brown didn't hold for integration. It held for desegregation based on demonstrated inequality. There is a difference. What was wrong in Brown was that the Court did not just say that Plessey was hopelessly wrong, which it was. Instead it went to great effort to avoid dissing the bigotted jerks ruling in Plessey (and progeny).
12.3.2008 8:34pm
MQuinn:
Can someone please explain to me why a sizable portion of Kopel's argument isn't a mere ad hominem???
12.3.2008 8:59pm
Oren:
ReaderY, it's reasonable to construe the 2A to only protect a cRKBA instead of an iRKBA. It is similarly reasonable to construe the 14A protections of due process to encompass a substantive element instead of merely a procedural one. In both cases, I see those views being held by reasonable, intelligent people even where I disagree.

Claiming that the text supports your conclusion because the text supports your conclusion is not an argument.
12.3.2008 9:09pm
einhverfr (mail) (www):
Professor Kopel:

The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not.


Ok. Looking at this question more deeply, I think that the reason for separating Hellar and Roe is not simply a matter of enumerated rights.

Here is my general reasoning behind placing reasonable abortion protections under the due process clause. IANAL....

The right to due process is not simply about the benefit of a trial and access to the courts, and it is enshrined in the main body of the Constitution in two other provisions: the guarantee of Habeas Corpus absent congressional suspension (which prevents administrative detention of the sort that is commonly though controversially used in, say, Israel), and the prohibition on bills of attainder which prevents similar problems from the legislative branch. There is clear reason to interpret "due process of law" to apply to every branch of government.

In this case, if a state were to ban a life-saving medical procedure simply because it was politically popular to do so (rather than due to compelling interests), this might be an unconstitutional death sentence under the due process clause. I know this is the sort of thing generally covered under rational basis review, but just stating my understanding of why this rational basis review might be necessary.

In such an interpretation of due process, it would seem to my mind that certain areas might be somewhat more suspect, for example intrusions into areas of life where people have a legitimate expectation of privacy. The question then becomes where this expectation of privacy exists, and how it is weighed against other government interests.

Now, I agree that the central holding of Roe thus falls under a reasonable argument relating to the 4th and 14th amendment texts, backed by other provisions in the body of the Constitution.

However, where I feel that the Roe court erred was a matter of judicial restraint. IMO, it was a badly written, overly ambitious ruling which sought in one iteration to settle all further questions relating to abortion laws, not just the ones before the court. The Roe court didn't provide a balancing and analysis standard, they provided a trimester framework which was rigid and more in line with legislative rather than judicial process. I think that if Roe had come out more like Casey, the whole debate would be very different.

On to Hellar. The court's ruling in Hellar is sound, I believe, just as it was in Casey. In past rulings, the court has largely defined terms like "militia" and determine the relationship between the amendment, state regulation, and militia duty. IMO, Hellar largely just follows these understandable precedents to their conclusion. That the right to bear arms is held by the states and subject to further regulation has not yet been overturned to my knowledge, but state regulation cannot go so far as to ban gun ownership since this affects the ability to raise a well-regulated militia in times of need.

I think that Wilkinson confuses "abortion law" with Roe because he has an axe to grind and therefore declines to consider more restrained and recent decisions. In this regard, I think it is reasonable to compare Hellar with Brown (which was a further development on the equal treatment guarantee discussed in Plessy, though the test was changed because the Plessy test was proven unworkable), and with Casey (which changed the abortion rights test towards a more judicial framework).
12.3.2008 9:15pm
Dilan Esper (mail) (www):
This has all the looks of a pissing contest.

Look, Wilkenson is sort of like Frankfurter. He thinks that only in drastic circumstances should one use the constitution to override the work of a democratic legislature. Whether one thinks that is correct or not, it is certainly one longstanding tradition of constitutional law that has had many intelligent adherents.

So, he's saying that neither Roe nor Heller, in his opinion, met the criteria for justifying the drastic remedy of judicially interfering with the work of a legislature.

Now, you come back and say "well Roe's not in the constitution and Heller is". That's not really a response to Wilkinson's argument, because his criteria isn't solely whether he thinks a right is in the Constitution.

And to those for whom this doesn't make sense, think about this-- I am sure EVERY ONE OF US believes that there are constitutional rights that exist but cannot be vindicated in court. Think about political question, and standing, and mootness, and other doctrines. These include rights that are expressly mentioned in the Constitution. And there are other rights that we might believe exist, but where there is only an ineffective remedy. Think of situations where one might decide not to apply the exclusionary rule. Some of you may even believe that the exclusionary rule shouldn't exist at all.

Wilkinson's philosophy just takes those considerations one step farther. He isn't looking at whether Roe or Heller is more grounded in constitutional text because constitutional text isn't his sole guide for when the awesome power of judicial review may be invoked.

Again, this isn't my judicial philosophy. But whether you agree with it or not, it isn't an answer to say "Heller's in the text". It may be, but there may still not be a remedy, or this remedy.
12.3.2008 9:19pm
Kazinski:
Oren,
It is reasonable to conclude that the "right of the people to keep and bear arms shall not be infringed." is really a collective (i.e. government) right, then it is just as reasonable to conclude that "the right of the people peaceably to assemble" and can only be exercised collectively, with government approval.

Now lets parse the text in the constitution that confers a right to a abortion.
12.3.2008 9:20pm
Bama 1L:
Kazinski's right. There's a lot of ambiguity in the assembly provision. Let's refer to the text:

"A well-attended legislature being necessary to the governance of the state, the right of the people peaceably to assemble shall not be infringed."

Oh, wait! That's not what it says!
12.3.2008 9:37pm
1Ler:
Oren, I'll admit that there might be room for reasonable minds to differ on the 2nd Amendment, but the distinction between a collective and individual right is not an analogous situation to comparing a grounded, instrumental right to process v. an ungrounded, substantive right. Sure, you can argue that there are such rights in the due process clause--and the debate continues on--but it's a stretch to say this debate is similar to interpreting the 2nd A.
12.3.2008 9:43pm
DangerMouse:
ReaderY, it's reasonable to construe the 2A to only protect a cRKBA instead of an iRKBA.

No it isn't. Only a person who's willing to make all of the "right of the people" described in the Constitution into so-called "collective rights" that can't be exercised individually. So much for all those freedoms in the first amendment.

Abortion is completely different because it's not in the constitution at all. It is completely, wholly made up. It is a figment of the Judiciary's imagination.

Someone who can't see the difference between a black and white, "right of the people" amendment, and some fake right invented by a bunch of old men who researched medical procedures on their own while writing the decision (acting like a legislature) shouldn't be discussing Constitutional Law.

Besides, all you have to know is that the article is favored by the New York Times.
12.3.2008 9:47pm
wyswyg:
Oren

This is an obscene begging of the question -- you cannot just assert a matter like that as if it were plain fact.



I'm glad you keep insisting on your devotion to the Constitution and to liberty, because otherwise the arguments you make would lead me to suspect that you worship power for its own sake.



Even as someone that agrees that the 2A protects an iRKBA, (probably stronger than the Court's opinion in Heller) that is not some self-evident fact that you can assert without controversy.



If you don't think that the language of the 2nd is plain and unarguable then I'm left to wonder how you ever take in any information at all. Is there any part of the Constitution which you don't believe can be deconstructed?
12.3.2008 9:51pm
krs:
Based solely on the description, it sounds as though the article concludes with a cheap shot at Judge Wilkinson.

After addressing the Roe analogy, our article examines Judge Wilkinson's stated rules of judicial restraint. We contend that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. Although the Wilkinson article is couched in the language of judicial restraint, it amounts to an endorsement of judicial lawlessness.

Is this necessary? It sounds like a random detour by people who are personally offended that a respected conservative judge would call their sacred cow un-conservative.

Perhaps reading the article would answer my question, but to borrow a few words from Dilan Esper, I've got better things to do than to read what appears to be an incitement to a pissing contest.
12.3.2008 9:53pm
wyswyg:

Now, you come back and say "well Roe's not in the constitution and Heller is". That's not really a response to Wilkinson's argument, because his criteria isn't solely whether he thinks a right is in the Constitution.



Golly!

Sounds like grounds for impeachment to me. But perhaps you can explain what other criteria judges are permited to take into account, since the mere matter of whether something is in the Constitution (or not) is not the "sole" factor.

If a judge upheld some draconian crackdown on free speech because he did think that he ought to be "solely" attentive to the First Amendment, would you still be as supportive?
12.3.2008 9:58pm
wyswyg:

Based solely on the description, it sounds as though the article concludes with a cheap shot at Judge Wilkinson.



You don't explain what you found cheap about it. It seems like a valid point. If the actual text of the Constitution is not important, then what are we left with other than being ruled by judicial whim? Or judical lawlessness, as they put it.
12.3.2008 10:02pm
Oren:
Besides, all you have to know is that the article is favored by the New York Times.

If given the modern day "Morton's Fork" of accepting either government exactly in line with the desires of the NYT or government exactly opposed to the desires of the NYT, I really couldn't tell you which options is the lesser of two terrible options. Just a thought.

As to constitutional construction, I'm not having the same argument again. Intelligent, reasonable people differ. That alone implies to me that there is a substantive issue to be debated beyond simply reading the text and pronouncing an answer.

[Aside, part of my recent frustration with modern conservatism is precisely this -- a total lack of regard for debate and rhetoric. It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism. Similarly here, it's assumed that everyone that understand the Constitution believes XYZ and there is no point explaining it.]
12.3.2008 10:03pm
DangerMouse:
Oren, if you don't want to have the debate that's your decision. But I find it incredibly difficult to understand how the phrase "right of the people" doesn't refer to anything except for an individual right. And I would find it even more unbelievable that the phrase means an individual right for one item but not an individual right for another item.

Also, there's gotta be some meaning between a right that's actually written down, in black and white, by the framers, in the fricking Constitution, and another thing that was invented by some judge allowing people to stick scissors in baby skulls before they're born.
12.3.2008 10:24pm
corneille1640 (mail):

Sounds like grounds for impeachment to me. But perhaps you can explain what other criteria judges are permited to take into account, since the mere matter of whether something is in the Constitution (or not) is not the "sole" factor.

If a judge upheld some draconian crackdown on free speech because he did think that he ought to be "solely" attentive to the First Amendment, would you still be as supportive?

I stand to be corrected, but I don't think Dilan Esper was agreeing with Wilkinson or with the sentiments that you very cogently attack. Rather, Dilan seemed, to me, to be clarifying Wilkinson's argument.
12.3.2008 10:31pm
therut (mail):
It is hard to explain something to people who can not read plain language with comprehension. The frustration with liberals is they alwayst THINK they are right but can never KNOW they are. Debate just for debate is a waste of time.
12.3.2008 10:36pm
MikeK@HGHA.org:
Anyone - first the disclosures - longtime occasional reader, first time poster, big time gun guy - I have a couple layman's questions.

Are there any other amendments or clauses in the bill of rights that are argued to be collective rather than individual rights?

Is there any other language in the bill of rights that uses the term "right" to dictate that something be regulated by the government?

Did the concept of collective rights exist when the constitution was written?

Thank you.
12.3.2008 10:37pm
John Moore (www):
@Oren
It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism.


Nonsense on stilts.
12.3.2008 10:42pm
Daedalus (mail):
Just a simple question from a non-lawyer. The Second Amendment is clearly delineated in the original Bill of Rights. Also approved at the same time was the 10th Amendment which says "...The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people...." Considering that abortion is not mentioned in the Constitution, how in the world was ROE ever decided, or is this just another example of the ever expanding "commerce clause."
12.3.2008 10:53pm
AnotherMike:

@Oren

It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism.


Nonsense on stilts.


Oh, the irony!
12.3.2008 11:00pm
McGrath (mail):
Daedalus

The Fourteenth Amendment speaks to the states. "No state shall make or enforce any law..."

Whether you think abortion falls under section two of the 14A is not something I want to argue about, but that's where the ct alleged to have gotten their authority to review state laws on abortion.
12.3.2008 11:06pm
David Muellenhoff (mail):
I think the important point about Wilkinson's article is that it clarifies how different Heller would have ended up had Wilkinson been nominated and confirmed to the Court, as Jan Crawford Greenburg discusses as a distinct possibility (under both Bush 41 and 43, IIRC) in her recent book.

Personally, I think the Heller ruling dodged what would have been a violent political reaction by a small minority of gun owners had it gone the other way, so I'm quite thankful Wilkinson is not on the Court.
12.3.2008 11:14pm
Oren:

But I find it incredibly difficult to understand how the phrase "right of the people" doesn't refer to anything except for an individual right. And I would find it even more unbelievable that the phrase means an individual right for one item but not an individual right for another item.

And I could feign abject ignorance and pretend it's difficult for me to understand how the phrase "well regulated militia" doesn't refer to anything other than the National Guard but I'd have to accept looking like a total moron.
12.3.2008 11:21pm
subpatre (mail):
"Right of the people" Oren dodges --a rather salient point-- once again. Oren is just another gun-grabber, albeit with a better delivery than most. But grabbing is where he is headed despite all his platitudes to the contrary.
12.3.2008 11:48pm
Professor Chaos:
einhverfr,

"[T]he right to bear arms is held by the states"? Geez, dude. Have you actually read Heller?
12.4.2008 12:34am
Roger Schlafly (www):
The Roe-Heller analogy is bizarre. Abortion has no obvious relation to the Constitution, and hardly anyone thought that there was any connection until Roe was decided. OTOH, the literal reading of the 2A has everything to do with gun rights, and Heller merely recited what had been the conventional wisdom for 220 years.
12.4.2008 12:42am
Kirk:
it's reasonable to construe the 2A to only protect a cRKBA instead of an iRKBA


That's either (a) complete nonense, or (b) some new meaning of "reasonable" that I'm wholly unfamiliar with.

I know this is completely old hat, but would you really attempt to argue that the government is free to censor your ad lib on the basis that the New York Times and NPR were still in operation?

Dangermouse, I'd put it this way: rights that aren't individual are no rights at all; the government can freely deprive you of them, forevelr, as long as it can plausibly claim that someone else, somewhere else, is still enjoying them.
12.4.2008 1:15am
einhverfr (mail) (www):
Professor Chaos:

I have read Heller. Long-run I think Heller will be one of those cases which gets softened a little simply because it does not purport to overturn past precedents, is arguably compatible with them, but takes a very different view of certain interpretive elements.

In the past, the court has held that there is no right to bear arms separate from the militia interest, and I am actually surprised that the Heller court didn't make more of this, because the definition used in the past actually supports the Heller opinion. The general idea is that the militia is a volunteer group which consists primarily of civilians who furnish their own weapons. Eliminate gun ownership, and the militia interest by the court's past definitions is fundamentally abridged.

Past precedents have held that the second amendment does not restrict the states to the same degree as the Federal Government. Once again, the question in DC was whether a total ban on new gun ownership was Constitutional, not questions answered in Prosser v. Illinois or related cases. One could read Heller as warning that states may control but not eliminate gun ownership.

In short I don't see anything in Heller which remotely looks like revisiting past precedents and overturning previous decisions, nor do I see anything which is substantially at odds with past jurisprudence in the area.

The question is: Is there *any* individual right in the second amendment? Based on precedents even before Heller, I think the answer had to be "yes."
12.4.2008 1:35am
CrazyTrain (mail):
It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism. Similarly here, it's assumed that everyone that understand the Constitution believes XYZ and there is no point explaining it.

Bingo. And that is why the conservative movement has been utterly obliterated in the last two elections -- they live in an echo chamber where Rush Limbaugh, Hannity and Instapundit just repeat the talking points.

Particularly funny is the way Kopel pretends that Roe/Casey* are self-evidently wrong -- 11 of the 15 Supreme Court Justices to have considered the issue on the Supreme Court have ruled otherwise. But to Kopel and the merry band of conservative legal scholars, these 11 Justices are not just wrong, but out to lunch, and there is no need to explain otherwise.

*Also funny is the way they explain Roe/Casey as establishing a "right to abortion" -- it's like they want everyone to be ignorant of what those cases stand for, and what the purported constitutional basis of those decisions is. I guess as someone who supports those decisions I should be happy by this as the continued refusal to understand those decisions makes it more likely that conservatives won't be able to make reasoned arguments against them and convince others that don't agree with them that they are right.
12.4.2008 1:42am
CrazyTrain (mail):
It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism. Similarly here, it's assumed that everyone that understand the Constitution believes XYZ and there is no point explaining it.

Bingo. And that is why the conservative movement has been utterly obliterated in the last two elections -- they live in an echo chamber where Rush Limbaugh, Hannity and Instapundit just repeat the talking points.

Particularly funny is the way Kopel pretends that Roe/Casey* are self-evidently wrong -- 11 of the 15 Supreme Court Justices to have considered the issue on the Supreme Court have ruled otherwise. But to Kopel and the merry band of conservative legal scholars, these 11 Justices are not just wrong, but out to lunch, and there is no need to explain otherwise.

*Also funny is the way they explain Roe/Casey as establishing a "right to abortion" -- it's like they want everyone to be ignorant of what those cases stand for, and what the purported constitutional basis of those decisions is. I guess as someone who supports those decisions I should be happy by this as the continued refusal to understand those decisions makes it more likely that conservatives won't be able to make reasoned arguments against them and convince others that don't agree with them that they are right.
12.4.2008 1:42am
josil (mail):
OK, there's Roe and Heller. And now, we are engaged in the "constitutional" question of same sex marriage. Is the latter to be blessed by another penumbra. It was by the California Supremes. If the judiciary is our protection against the tyranny of the majority, what is our protection against the tyranny of five S.C justices? Anyone?
12.4.2008 1:46am
einhverfr (mail) (www):
SHoudl be "Presser v. Illinois"
12.4.2008 1:53am
einhverfr (mail) (www):
One more interesting point about Heller:

Some here contend that Heller separates the Militia interest from the right to bear arms. However, given the way the court treated Miller (correctly reading that the federal government could limit the types of weapons to those pertaining to the militia interest) seems to undermine this.

I still don't see what the big deal is about Heller. It doesn't address the fact that Presser stated that the states could enact more stringent regulations than the Federal Government, and it doesn't even mark as suspect the provisions in Miller relating to the militia interest. All the court really seems to be saying is that gun elimination as a strategy is not permissible under the amendment, and that undue restrictions to how the gun can be kept in the house also fall under the same issues.
12.4.2008 2:00am
MCM (mail):
"Right of the people" Oren dodges --a rather salient point-- once again. Oren is just another gun-grabber, albeit with a better delivery than most. But grabbing is where he is headed despite all his platitudes to the contrary.


apparently missed when Oren said

as someone that agrees that the 2A protects an iRKBA, (probably stronger than the Court's opinion in Heller)


This is where conservatism is today. I would wish you "good luck" in 2012, but it'd be a waste of keystrokes.
12.4.2008 2:32am
NickM (mail) (www):
"Political thicket" can be used to refuse to strike down any law challenged as violating a constitutional right.

Judge Wilkinson's idea of deference to the legislature makes Felix Frankfurter look like William Douglas.

Nick
12.4.2008 4:27am
Cornellian (mail):
If the judiciary is our protection against the tyranny of the majority, what is our protection against the tyranny of five S.C justices? Anyone?

That's easy, elect politicians who will appoint different judges. In the case of California, you can also vote against the judge directly the next time his retention election comes up.

Next question.
12.4.2008 5:06am
LM (mail):
Oren,

Aside, part of my recent frustration with modern conservatism is precisely this -- a total lack of regard for debate and rhetoric. It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism. Similarly here, it's assumed that everyone that understand the Constitution believes XYZ and there is no point explaining it.

Though I couldn't agree more as to the activist conservative base (e.g., those who mostly populate the right wing blogosphere and talk radio), I assume "all conservatives" was a bit of rhetorical license.
12.4.2008 5:44am
Brett Bellmore:

And that is why the conservative movement has been utterly obliterated in the last two elections -- they live in an echo chamber where Rush Limbaugh, Hannity and Instapundit just repeat the talking points.


Really? I'd say that it's been obliterated because it's chosen vehicle is a party controlled by corrupt rent seekers, who view any sort of principle AT ALL as a threat to their corrupt prosperity, and so have used the party machinery to make darned sure that the party doesn't RUN CONSERVATIVE CANDIDATES. While claiming to BE conservatives.

It's been such for quite some time. It became obvious it was such when they finally got tired of pretending to have principles during the '95 budget shutdown, and caved.

I mean, Bush? Couldn't even bear to call himself a "conservative" without hyphenating it so as to confirm liberal libels against conservatism as heartless. McCain? Built his career buying media adoration by teaming up with liberals to screw conservatives over.

If you listened to Limbaugh during this election, you certainly wouldn't think that he'd have regarded a McCain win as a victory for conservatives.
12.4.2008 6:37am
bacchys (mail):

*Also funny is the way they explain Roe/Casey as establishing a "right to abortion" -- it's like they want everyone to be ignorant of what those cases stand for, and what the purported constitutional basis of those decisions is. I guess as someone who supports those decisions I should be happy by this as the continued refusal to understand those decisions makes it more likely that conservatives won't be able to make reasoned arguments against them and convince others that don't agree with them that they are right.

Considering the lack of legs Roe/Casey have had, it seems rather reasonable to me to look at them as purely creating a right to abortion (or, at least, discovering the right hiding from everyone for nearly two centuries in the penumbras).
12.4.2008 6:58am
bacchys (mail):

I still don't see what the big deal is about Heller. It doesn't address the fact that Presser stated that the states could enact more stringent regulations than the Federal Government, and it doesn't even mark as suspect the provisions in Miller relating to the militia interest. All the court really seems to be saying is that gun elimination as a strategy is not permissible under the amendment, and that undue restrictions to how the gun can be kept in the house also fall under the same issues.

I've missed that part in Presser. As I recall, Presser involved a gentleman charged with parading his own little army down the street, not with simply possessing firearms.

As a side note, the Court even stated that the states couldn't prohibit firearms ownership lest the national goverment be deprived of the resource of an armed citizenry.
12.4.2008 7:01am
NaG (mail):
Personally, if it were my law review article, I would not have included a section that basically accuses Judge Wilkinson of hypocrisy. I do not think it was necessary, nor relevant.

It seems to me that the best argument against Judge Wilkinson's insistence that the will of the democratic legislature must have preference over individual rights is the presence of the Ninth and Tenth Amendments. The Ninth Amendment states that the people have rights beyond those enumerated in the Constitution, and the Tenth Amendment states that powers not delegated to the federal government are reserved by the states or the people. While these are not laws that are enforceable in the way most laws are, they definitely call for a form of jurisprudence in which the federal government is only constitutionally entitled to wield those powers expressly delegated in the Constitution. Yes, I know, along came Marbury v. Madison with its Federalist "let the ends be legitimate" language, but the language of the Ninth and Tenth Amendments implies to me the position that all tiebreakers go to the states or to the people. When in doubt, Congress is out.

The Founders were not overly enamored with the righteousness of democratic government. They realized that individual rights were the primary concern, as even a democratic government can oppress a minority (as it most certainly did for much of its history). While I can easily understand how honest people can disagree as to the scope of power delegated under the Constitution, I worry about the notion that the government should always win a tug-of-war between delegated power and individual rights. That seems to me to be the exact opposite inclination bourn by the Founders, and for good reason.
12.4.2008 8:00am
PersonFromPorlock:
Oren, you've probably already noticed this (since it aligns with your cRKBA position) but the First Amendment's Religion Clause actually only prohibits Congress from establishing a federal church or interfering with the operation of churches established by the states. For want of an alternative, "the free exercise thereof" can only refer back to "an establishment of religion".

Nothing about individual freedom of religion in there at all. ;^)
12.4.2008 8:10am
hawkins:

If the judiciary is our protection against the tyranny of the majority, what is our protection against the tyranny of five S.C justices?


Have justices started taking away rights?
12.4.2008 8:19am
Oren:
LM, you are correct. There are plenty of thoughtful conservatives but they appear to be completely marginalized within the conservative movement. When will a GOP President appoint Attorney General Kerr or EPA head Adler?

Also, Brett, as a political aside, the American populace did not approve of the '95 budget debacle and placed the blame squarely on Newt &Co. That might be unfair (Clinton out maneuvered them, basically) but that's politics. Extending it any further would only have damaged them more.
12.4.2008 8:21am
Melancton Smith:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.




No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.


If you want to parse text, compare #2 with #3. Wouldn't the presense of the highlighted text in #3 and the lack of it elsewhere be considered significant?

Discuss.
12.4.2008 8:56am
pon raul:
MQuinn:

Can someone please explain to me why a sizable portion of Kopel's argument isn't a mere ad hominem???


Apparently a significant number of people do not know what is and what is not an ad hominem attack. It is not an ad hominem attack to say that "David Post says that Obama is God-like therefore he is an idiot." It is mean, personal, but it is not an hominem attack. An ad hominen attack would be "David Post is an idiot who thinks that Soccer is an interesting sport, therefore his position on Sarah Palin is wrong."

Likewise, saying that Judge Wilkinson's position is in error and therefore he is silly is not an ad hominem attack. Please consider the following link.


http://www.nizkor.org/features/fallacies/ad-hominem.html
12.4.2008 9:06am
Kirk:
NaG,
I worry about the notion that the government should always win a tug-of-war between delegated power and individual rights. That seems to me to be the exact opposite inclination bourn by the Founders, and for good reason.

Very well put. OK if I quote you everywhere? :-)
12.4.2008 10:04am
Brian Mac:

Bingo. And that [assumption by all conservatives that conservativism is self-evidently correct] is why the conservative movement has been utterly obliterated in the last two elections.

Yeah, Iraq, the economy and a wildy unpopular president were mere peripheral issues.
12.4.2008 10:13am
Oren:



If you want to parse text, compare #2 with #3. Wouldn't the presense of the highlighted text in #3 and the lack of it elsewhere be considered significant?

Moving the "well regulated" clause in the sentence structure ought not to effect the laws.

[DISCLAIMER (since it's now 5 people that have misread me): I support a iRKBA much stronger than Heller (at least intermed scrutiny).]
12.4.2008 10:13am
Kirk:
Oren,

Your response to Melancton seems, well, unresponsive, as the things he was highlighting and asking about don't involve a mere change in position of a "well regulated" clause.
12.4.2008 10:36am
einhverfr (mail) (www):
Melancton Smith:

The third suggests that soldiers may never be quartered in private homes during a time of peace (see Engblom v. Carey), and that laws are necessary to do it during a time of war.

However, courts in Presser, Miller, and even Heller have closely tied the right to keep and bear arms to the militia interest, and Heller does not revisit Presser in any way, which held that states could further regulate this process (the issue in Presser had to do with whether the state could make Presser's conduct with his weapon illegal since it had to do with how he bore his arms).

However, in courts did not reach a clear verdict on whether the militia interest could be substantially abridged by the state.

My understanding of Miller is that typical infantry weapons are generally protected under the second amendment, and that weapons which are not typical infantry weapons might not be (for example, weapons typically used by special forces, such as nuclear demolition munitions). However, this seems to raise the question as to whether weapons which are fundamentally dangerous to the pubic interest (such as stinger missiles) could be kept by people, even if their residences might increase that risk (say in the path of final approach to an airport). My understanding of it though would be quite clear that something like a military-model M-16 (rather than the versions which came out after the assault weapons ban) ought to be generally under the scope of protection articulated in Miller.
12.4.2008 10:51am
einhverfr (mail) (www):
bacchys:

I've missed that part in Presser. As I recall, Presser involved a gentleman charged with parading his own little army down the street, not with simply possessing firearms.


That has to do with the right to bear arms, does it not? The question was whether a state can further regulate bearing arms.

If bearing arms can be further regulated, why not keeping them?

Once again, the decision before the court then was not gun elimination (as it was in Heller), but control over bearing arms. This suggests that states may adopt reasonable control measures, but not aimed at elimination of such weapons from private individuals as a class.
12.4.2008 10:58am
Melancton Smith:
einhverfr wrote:

The third suggests that soldiers may never be quartered in private homes during a time of peace (see Engblom v. Carey), and that laws are necessary to do it during a time of war.


My point is they could easily have written #2 as:


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

but in a manner prescribed by law

.


They could also have written:


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed by Congress.


However, they chose neither formulation. To me this should be considered when parsing the meaning of the text.
12.4.2008 11:23am
Melancton Smith:
Yuck that last turned out wrong. Preview is my new friend. The first blockquote should look like this:


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed but in a manner prescribed by law.
12.4.2008 11:25am
Melancton Smith:
Wasn't Presser decided prior to the bulk of BOR incorporation precedent arising from 14A litigation?

I think it is due for review.
12.4.2008 11:27am
Oren:
I too would like to see 2A incorporation.
12.4.2008 12:09pm
Angus Lander (mail):
There's one part of your (otherwise persuasive) response that I think is a little disingenuous. You criticize Wilkinson for using deriving his conclusion from "judicial values:"

<blockquote>
Judge Wilkinson...treats the Constitution as a minor element in constitutional law. What counts for him is a principal of judicial restraint that is dictated by judicial "values" [scare-quoted presumably to indicate your skepticism about their "value"].
</blockquote>

You then contrast Wilkinson's approach with your, implicitly, "value-free" attempts to simply determine what the Constitution means. Except that's not exactly what you say: "We agree that <i>Roe</i> did all these things [violated Wilkinson's "judicial values]. But that is not why <i>Roe</i> was wrong. <i>Roe</i> was wrong because it had no basis in the Constitution <i>and was not derived from precedent</i>" (emphasis added).

There are plenty of good reasons to value <i>stare decisis</i> - e.g. it makes the law predictable and so easier to implement and obey. Moreover, I'm sure you'd be happy to follow Scalia (in <i>A Matter of Interpretation</i>) and say that you embrace it on purely prudential grounds: <i>despite</i> the fact that it distorts the meaning of the Constitution.

The problem is that now we're discussing judicial "values" on their merits, and you no longer have available the move: Wilkinson's approach is illegitimate because it allows his values to distort the meaning of the Constitution, our approach is legitimate because it just interprets the Constitution correctly. Perhaps you can defend stare decisis as the only reasonable exception to originalism, but you have to do it on Wilkinson's terms, with reference to the morality, or prudence, of the case law it promises to produce; the Constitution alone will not vindicate your interpretive approach.
12.4.2008 12:15pm
Don Kilmer (mail):
Oren, in an earlier post you said:


And I could feign abject ignorance and pretend it's difficult for me to understand how the phrase "well regulated militia" doesn't refer to anything other than the National Guard but I'd have to accept looking like a total moron.


The national guard and the militia are not the same body of "the people."

See: Title 10 of the United States Code.

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


-----

You might also look to the coordinate branches of government (you know, congresspersons and senators) who have also defined 2A as an individual right unconnected with militia status. See: FOPA and PLCIFA.
12.4.2008 12:21pm
einhverfr (mail) (www):
Melancton Smith:

My main point is that this is largely a moot point because the definition of militia is such that any militia interest is only served by private gun ownership.

I don't think 2A protects the right to own nuclear demolition munitions (backpack nukes similar to those available for use by special forces), but even the most restrictive reading of Miller and Presser suggests that private gun ownership is the only way to serve the militia interest.
12.4.2008 12:26pm
DC Lawyer (mail):
You conclude (or nearly do so) your post with this statement:

"The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences."

Is that really the case? Does Judge Wilkinson actually like Jim Crow and gun control laws? I doubt it very much.

Still, I share your main view that Wilkinson is incorrect about Heller, and that the comparison to Roe is simply untenable. As you note, there is a constitutional basis for Heller - none for Roe. In addition, Heller was applied to the nation's most sweeping gun law and is likely to pose problems to those gun laws that are more moderate. In comparison, even the tiniest of restrictions on abortion have been stricken under Roe.

In short, Heller is likely to stop only extremist laws that violate the Constitution's explicit text. Roe has been used against virtually all laws based on an "emanation of a penumbra" (or do I have that backwards?).

There's really no comparison between the two.
12.4.2008 12:41pm
Oren:
Don, I was being sarcastic. I would have to feign ignorance to think that the militia was the national guard just as much as I would have to feign ignorance to believe as DangerMouse does, that 11/15 Justices since 1975 are unthinking, unintelligent and unreasonable.
12.4.2008 12:41pm
DC Lawyer (mail):
Sorry - I meant to say that Heller was UNlikely to pose problems moderate gun laws.
12.4.2008 12:42pm
einhverfr (mail) (www):
Oren Wrote:

And I could feign abject ignorance and pretend it's difficult for me to understand how the phrase "well regulated militia" doesn't refer to anything other than the National Guard but I'd have to accept looking like a total moron.


I think the court explained this fairly well in Miller. Basically the militias were called forth in times when needed for the common defence, consisting of all able-bodied men, and the members were expected to furnish their own weapons.

Well-regulated thus means IMO a movement away from "irregular" and thus supports discipline and training, not undue regulation by law.
12.4.2008 12:50pm
Don Kilmer (mail):
Oren said:

Don, I was being sarcastic. I would have to feign ignorance to think that the militia was the national guard just as much as I would have to feign ignorance to believe as DangerMouse does, that 11/15 Justices since 1975 are unthinking, unintelligent and unreasonable.


I picked up on the sarcasim re: militia. The sarcasim was readily identifable because it is so easy to research and distinguish militia from National Guard.

But the 11/15 Justices from 1975 to present were not planting their tongues into their cheeks, they were engaged in extra-constitutional policy making by being willfully ignorant of history and constitutional construction because collective rights suited their political philosophy.

Any please don't remind me that some of those justices were conservative (i.e.,Burger); threats to individual liberty are coming at us from the right and the left these days.
12.4.2008 1:17pm
Oren:
Then you are being willfully obtuse. The Justices interpreted the Constitution to the best of their abilities. That's not to say they didn't err, but I have no idea how you could even begin to convince yourself that you can know the internal workings of another humans mind.
12.4.2008 1:53pm
Oren:
The more I think about it, the more a real epistemology of knowing that someone is willfully ignorant must require parapsychology. According to the way I believe the universe works, what you propose to have done is quite literally impossible.
12.4.2008 1:56pm
Tom Perkins (mail):
@ Oren


This is an obscene begging of the question -- you cannot just assert a matter like that as if it were plain fact.


Except it is a fact, and taken as such by the most direct "construction" of the text--just reading it. Neither does there exist in history anything to derogate such a construction.


ReaderY, it's reasonable to construe the 2A to only protect a cRKBA instead of an iRKBA.


No, it is neccessarily a dishonest position to take, there being not one shred of evidence for it.


It is similarly reasonable to construe the 14A protections of due process to encompass a substantive element instead of merely a procedural one.


Ah yes, there's always so much more substance when we ignore procedure...


And I could feign abject ignorance and pretend it's difficult for me to understand how the phrase "well regulated militia" doesn't refer to anything other than the National Guard but I'd have to accept looking like a total moron.


Since the National Guard did not exist at the time or for more than 100 years hence, and the "select militia" model was considered and rejected by the Founders--which is what the National Guard is--then while I am certain you are ignorant of the facts involved, I am not yet willing to declare you a moron.

Oren, it is puzzlement why anyone would extend an olive branch of assumed goodwill, intelligence, or honesty to anyone who makes the arguments against an individual rights interpretation of the 2nd. It is simply not true that merely because many people who are usually possesed of such have a like opinion, that that opinion has even a trace of validity.

No argument for a collective rights interpretation of the 2nd has a trace of validity. Not one.

Yours, TDP, ml, msl, &pfpp
12.4.2008 2:59pm
einhverfr (mail) (www):
Tom Perkins--

A substantive element of due process (in addition to the procedural one) can be found in various elements of the body of the Constitution, from the discussions of habeas corpus to the prohibition on bills of attainder.
12.4.2008 3:10pm
cboldt (mail):
-- The Justices interpreted the Constitution to the best of their abilities. --
.
I believe that Justices, being human, and not immune from engaging in the application of outcome oriented logic. "To the best of their abilities" does not equal "good faith." I suspect some of the judges operate under a paradigm that the government is superior over the people it governs; and that if an action is "reasonable" in light of the government, then that'll be the settled law.
12.4.2008 3:12pm
Sarcastro (www):

No argument for a collective rights interpretation of the 2nd has a trace of validity. Not one.


Wow, such a superlative declarative sentence is just so clearly true!

as I always say, the best arguments don't contain any argument!
12.4.2008 3:16pm
Fedya (www):
Hawkins wrote:


If the judiciary is our protection against the tyranny of the majority, what is our protection against the tyranny of five S.C justices?


Have justices started taking away rights?


Some people would argue that by not finding McCain-Feingold unconstitutional, they have.
12.4.2008 3:34pm
Oren:


No, it is neccessarily a dishonest position to take, there being not one shred of evidence for it.


Having a name like Tom is dishonest since, evidently, no one has ever named their child Tom. The legions of parents that have named their kids Tom since 1930s is not evidence to the contrary because those people are themselves dishonest.




Oren, it is puzzlement why anyone would extend an olive branch of assumed goodwill, intelligence, or honesty to anyone who makes the arguments against an individual rights interpretation of the 2nd. It is simply not true that merely because many people who are usually possesed of such have a like opinion, that that opinion has even a trace of validity.


[DISCLAIMER (since it's now 5 people that have misread me): I support a iRKBA much stronger than Heller (at least intermed scrutiny).]
12.4.2008 3:38pm
Oren:

It is simply not true that merely because many people who are usually possesed of such have a like opinion, that that opinion has even a trace of validity.

That is actually the definition of reasonable.
12.4.2008 3:56pm
Oren:
I should amend -- that's the definition of a reasonable point of view, even if it's not valid.
12.4.2008 4:01pm
cboldt (mail):
-- [many people ... have a like opinion] is actually the definition of reasonable --
.
Heh. Is a complete ban on possession of personal firearms in the home "reasonable?" According to the above definition, the answer is "yes."
.
Behold "reasonable gun control."
12.4.2008 4:04pm
cboldt (mail):
In light of modified definition, "Reasonable but invalid," whatever that is.
.
Somewhat like the members of the flat earth society. Reasonable (due to the not insignificant number of them) but invalid belief that the earth is flat.
12.4.2008 4:07pm
Sarcastro (www):
Oren everybody knows the definition of reasonable is whether you agree with cboldt! What is it with you and democratic definitions or words?

And why do you support a Heller so much more than iRKBA?
12.4.2008 4:11pm
Oren:

I believe that Justices, being human, and not immune from engaging in the application of outcome oriented logic. "To the best of their abilities" does not equal "good faith." I suspect some of the judges operate under a paradigm that the government is superior over the people it governs; and that if an action is "reasonable" in light of the government, then that'll be the settled law.

Well, I disagree, but at least you "believe" and "suspect" things about the internal mental states of others. Then again, you probably don't have the telepathic skills

I'm intrigued by your distinction between (interpreting the Constitution to the best of their ability) and (interpreting the Constitution in good faith). Can you expound what you mean?
12.4.2008 4:33pm
Cornellian (mail):
Looks like Judge Wilkinson's days as a Republican hero are over.

Both parties agree that courts should be deferential to the elected branches on rights they don't like, and aggressively protect the rights they do like from encroachment by those same elected branches. They just differ on which rights they like.
12.4.2008 4:44pm
cboldt (mail):
-- I'm intrigued by your distinction between (interpreting the Constitution to the best of their ability) and (interpreting the Constitution in good faith). Can you expound what you mean? --
.
It's similar to the distinction you draw between "reasonable" and "valid."
.
Regarding the application of the phrases "best of their ability" and "good faith" to SCOTUS Justice interpretation of the Constitution, my point is that I strongly believe certain positions are taken in order to obtain a desired policy outcome, and that those positions are well argued to the best of that Justices ability. But within those very same arguments, I believe that those Justices know, in their heart of hearts, that the argument is not in harmony with the US government as founded by the Constitution. The deviation is of course rationalized on some basis. Federal power has expanded greatly, and all three branches of the federal government have facilitated that transformation. The Supreme Court has no way to turn back without losing face.
.
"Outcome-oriented jurisprudence." It's all the rage, haven't you heard?
12.4.2008 4:58pm
cboldt (mail):
-- I believe that those Justices know, in their heart of hearts, that the argument is not in harmony with the US government as founded by the Constitution. --
.
Said another way, these same Justices know their arguments are logically (or otherwise) flawed at certain points. They are skilled at the use of rhetorical sleight of hand. Sometimes it's performed in the open, "The 10th amendment states but a truism" comes to mind.
.
But to the magician, it's not really magic. The good ones never disclose the secrets.
12.4.2008 5:06pm
Oren:

But within those very same arguments, I believe that those Justices know, in their heart of hearts, that the argument is not in harmony with the US government as founded by the Constitution.

Perhaps therein lies the problem -- not everyone agrees that we ought to be governed as intended by the founders. Kennedy writes that "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.". That seems to emphatically reject your normative notion of Constitutional interpretation entirely.
12.4.2008 5:06pm
Oren:
Scratch that, I misread "as founded by the Constitution" to mean "as the founders wrote in the Constitution".

Kennedy believes that we ought to have a government who foundation is the Constitution. He just think the document's protection of liberty is not fixed but expands. That is to say, he believes (perhaps not sincerely, as you argue, but taking it as face value and I'll respond to your "magic" post in a second) that a government founded by the Constitution is one in which an ever-expanding zone of liberty (personal autonomy, if you like).
12.4.2008 5:13pm
Oren:


Said another way, these same Justices know their arguments are logically (or otherwise) flawed at certain points. They are skilled at the use of rhetorical sleight of hand. Sometimes it's performed in the open, "The 10th amendment states but a truism" comes to mind.

I don't think it is a matter of logic but rather one of normative views on interpretation. Is there a logical reason, a priori, that I should be an original-meaning originalist instead of an original-intent originalist? Is Randy Barnett's "presumption of liberty" more logical than Breyer's "active liberty"?

In my opinion, evaluating those alternatives is fundamentally normative, not logical.
12.4.2008 5:17pm
Sarcastro (www):
I can only assume that before Constitutional Textualism came up 30 years ago, EVERY Justice was lying to themselves and the American people!
12.4.2008 5:26pm
cboldt (mail):
Picking a narrow example, I think finding a cRKBA as an artifact of historical FACT requires intellectual dishonesty of one form or another. A particular construction of the word "militia," for example. In a slightly different form, in Heller, one finds a dissent that claims to find an iRKBA, but then says that iRKBA can be limited to those who are in the organized militia. Rhetorical sleight of hand, "Orwellian," pick the phrase that suits you sense of insulting (or not) the purveyor.
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Human nature is not "good faith," not even at the level of a SCOTUS Justice. Maybe especially not at that level of power. Humans then to strive for outcomes. While granting a presumption of good faith is charitable, one would have to be Pollyanna to believe the presumption always holds.
12.4.2008 6:15pm
Sarcastro (www):
Ooh! Calvinism!
12.4.2008 6:31pm
einhverfr (mail) (www):
Just a point on iRKBA vs cRKBA....

The way I read the current precedents is that the right is fundamentally collective and does not fully extend to the individual. Hence laws restricting felons from owning handguns are constitutional. However at the same time this collective right is fundamentally dependant on an individual right which extends to most people.

I don't think it is a matter of one or the other but both an how they relate to eachother. I think you see that even in Heller.
12.4.2008 6:49pm
Oren:
cboltd, I would be more convinced of this "result orientation" of the Justices if you could show me particular cases in which they contradict their own stated doctrines to reach a preferred result. As far as I can tell, Scalia is always a textualist and Breyer is always a living-constitutionalist, even when it conflicts with their interests. I bet the majority in Raich votes for medical marijuana when it comes up on their ballots.
12.4.2008 7:08pm
Oren:
And I bet Thomas votes against medipot on his ballot too, while we are at it.
12.4.2008 7:09pm
cboldt (mail):
-- I would be more convinced of this "result orientation" of the Justices if you could show me particular cases in which they contradict their own stated doctrines to reach a preferred result --
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"Results orientation" doesn't require deviation from a doctrinal approach. "Results oriented" outcomes can be obtained working within just about any doctrinal approach. Scalia's finding of "commonly owned," applied today, is a slight of hand in that today, "commonly owned" is substantially affected by the 1934 and 1968 gun acts. But such or similar acts were not in place at the time the Constitution was composed.
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The preferred outcome is "don't delegitimize the 1934 and 1968 gun acts while finding an iRKBA." In the same vein, see "Miller was convicted," by all 9 justices.
12.4.2008 7:20pm
Oren:
Ah, I was thinking of a grander result oriented scheme. Food for thought.
12.4.2008 7:25pm
Melancton Smith:
Oren writes:

Perhaps therein lies the problem -- not everyone agrees that we ought to be governed as intended by the founders.


Isn't that why we have Article 5? I think the founders were smart enough to realize they weren't smart enough.

If you choose instead to change it by changing how you read it then we really aren't a nation based upon any principles much less rule of law.
12.4.2008 7:25pm
Tom Perkins (mail):
I wonder if Sarcastro can turn his mental powers to uncovering a shred of evidence that would in fact show the statement of mine which he derided, to be even an exaggeration, let alone hyperbole or a risible notion.

Come on S, the clock is ticking!...and better men than you, even Supreme Court Justices, have tried and failed.

Yours, TDP, ml, msl, &pfpp
12.4.2008 9:11pm
Tom Perkins (mail):
Melancton Smith wrote:


Isn't that why we have Article 5? I think the founders were smart enough to realize they weren't smart enough.


I conclude from his statements that Oren takes the majority view to be the end all and be all of what is justly done by government, and the Art V. is an anachronistic irrelevance.

@ Oren



I wrote:
Oren, it is puzzlement why anyone would extend an olive branch of assumed goodwill, intelligence, or honesty to anyone who makes the arguments against an individual rights interpretation of the 2nd. It is simply not true that merely because many people who are usually possesed of such have a like opinion, that that opinion has even a trace of validity.


In response Oren wrote:
[DISCLAIMER (since it's now 5 people that have misread me): I support a iRKBA much stronger than Heller (at least intermed scrutiny).]


Oren I did not misread you a stitch. If you will look again, you will see I never wrote that you did not believe there existed an individual RKBA. I wrote that you were quite wrong or dishonest in propounding that there was a defensible or even colorable argument there was no such right.

There's no overlap there.

Yours, TDP, ml, msl, &pfpp
12.4.2008 9:21pm
Oren:



I conclude from his statements that Oren takes the majority view to be the end all and be all of what is justly done by government, and the Art V. is an anachronistic irrelevance.


How could I possibly reconcile that with my statements that the 2A restricts the rights of the majority to impose laws that infringe the RKBA? What about all the other instances where I have insisted that the courts require that the legislature (Federal &State) refrain from violating the rights of the citizenry?

No, I feel I'm way too far gone to play majoritarian at this point.
12.4.2008 10:34pm
einhverfr (mail) (www):
Melancton Smith:

I think there are a number of questions that your post about founder's intent raises. Of course I think that the intent of the founders is crucial, but:

1) Is it really possible to know the intent and mind of another?

2) Is it really proper to treat personal correspondence as legally commanding when it comes to the interpretation of the Constitution as originally ratified? What room is there for people to compromise in these cases?

3) One of the important early developments in American legal tradition was attention to precedent, and a series of judicial rules which came about to help prevent courts from reaching inconsistent decisions (collateral estoppel being another but clearly related doctrine). It seems to my mind that the specific methodology generally taken in adjudicating cases is not specified or commanded by the Constitution, and that we are better off with evolving practices here (respecting precedent both in matters of fact, such as collateral estoppel, and in matters of law being a big one). Would you disagree?

As I say, I actually agree with the constitutional footing of Roe, but I still think it was a fairly poorly thought-out and unrestrained decision in that the trimester framework was more legislative than judicial (the more conservative court came up with a better ruling in Casey). I have no doubt that personal liberty was well regarded by the founders (recalling Luther Martin's comment about the Constitution being a "knife in the back of the Goddess Liberty"), and so I have no doubt that the due process clause binds more than the courts.
12.5.2008 1:24am
cboldt (mail):
-- How could I possibly reconcile [majority view to be the end all and be all of what is justly done by government] with my statements that the 2A restricts the rights of the majority to impose laws that infringe the RKBA? --
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Even if you aren't able to see your acquiescence to majority rule over an inherent right, some outside observers can. In this case, the trickery might be found to lie in the words "restrict" and "infringe." You've stated that you find a majority rule on 15 round magazines would be/is just. In your system, the 2nd amendment doesn't restrict the right of the majority to impose a magazine size limit, perhaps because you view such a rule as "not an infringement."

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If Heller had come out the way Stevens states "the law is," would you would find the decision to be correct, valid, just? It would have obtained majority support in the Court. That there is an individual right to keep and bear arms, strictly subject to the condition that the individual be operating in a collective group that exists only under the direct control of the government. Those who support this outcome might even go on to say that this paradigm is no infringement on individual rights whatsoever, and point back to the 2nd amendment language "right of the people" for "proof."
12.5.2008 6:17am
Don Kilmer (mail):
Oren wrote:


Then you are being willfully obtuse. The Justices interpreted the Constitution to the best of their abilities. That's not to say they didn't err, but I have no idea how you could even begin to convince yourself that you can know the internal workings of another humans mind.


and,...


The more I think about it, the more a real epistemology of knowing that someone is willfully ignorant must require parapsychology. According to the way I believe the universe works, what you propose to have done is quite literally impossible.


I make no claim to having powers of parapsychology. I was referring to Jutices (e.g., Burger) who make pronouncements without analysis. I concede that reasonable minds can differ in good faith on any number of topics. Burger's accusation that the NRA committs fraud by endorsing iRKBA was willful ignorance.

The only thorough analysis of the cRKBA position that I am aware of is found in the Silviera decision out of the Ninth Circuit. Even the Heller dissent conceded 2A protects an individual right.

So with the exception of the Silviera panel, who are these 11/15 post-1975 justices who got it wrong in good faith?
12.5.2008 11:17am
Oren:

So with the exception of the Silviera panel, who are these 11/15 post-1975 justices who got it wrong in good faith?

Sorry if I was unclear, the 11/15 figure is the pro-Roe side of Roe v. Wade. We don't know how the SCOTUS felt about the circuit (mis)application of Miller because they denied cert even as the CAs (mis)appropriated Miller into a cRKBA precedent. Draw conclusions from that as you like.

If you make no claim of telepathy then you could not possibly justify the claim that Justices were "being willfully ignorant of history and constitutional construction". That assertion requires knowing unknowable things about the internal process of their mind. At most, you can take cboldt's position that you believe their reasoning suspect and have doubts about their sincerity.
12.5.2008 11:27am
Oren:
Even if you aren't able to see your acquiescence to majority rule over an inherent right, some outside observers can. In this case, the trickery might be found to lie in the words "restrict" and "infringe." You've stated that you find a majority rule on 15 round magazines would be/is just. In your system, the 2nd amendment doesn't restrict the right of the majority to impose a magazine size limit, perhaps because you view such a rule as "not an infringement."

(1) Quibble: I didn't say the 15-round mag is "just", I said that I felt it was an appropriate matter for legislative determination. Having thought about the matter since then, I conclude that I would vote against such a ban because I don't think it would do any good (but that's a legislative-type determination).

(1) Substantive: Such a restriction is, of course, an infringement on the right to bear arms. So is a restriction on civilian ownership of man-portable SAMs and RPGs. The legal-type question is whether the government's interest in restricting civilian ownership of a particular arm is reasonable.

(2) If Heller came out the other way, I would be very disappointed but, ultimately, I live in a country of laws and I have to respect all the stupid, silly and incorrect things that come with it. That's the compromise that we all make in order to live together.
12.5.2008 11:35am
cboldt (mail):
-- Substantive: Such a restriction is, of course, an infringement on the right to bear arms. So is a restriction on civilian ownership of man-portable SAMs and RPGs. --
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Not necessarily. As you know, everything in the law turns of definition of terms, and terms are often defined outside of commonly-associated meaning. If rocket-propelled items (bazookas, RPG, SAM, etc.) are defined outside of the scope of the term "arms," then an outright ban on their existence would not be an infringement against "arms."
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On the other hand, if one says "arms" includes a magazine-fed sidearm, and that sort of sidearm is configured in high capacity for militia use, then the argument that limiting the accessories is not an infringement is not apt to have as many adherents.
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-- If Heller came out the other way, I would be very disappointed ... all the stupid, silly and incorrect things ... --
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But would it not be both "correct" on account of the body who rendered the decision, and "reasonable" under the auspices of being agreed by a majority? I understand that all of that might be taken as "mere labeling," but at some point either the people just take whatever they are told to take, or they object. Personally, I am outraged at a substantial number of judicial, legislative and executive "fiats," but eventually realize that my fellow country-men are mostly dumb-asses plugged into iPods, so figure they get all the government they deserve, and then some. I'll be the last person you'd find fighting to preserve freedom for liberals. If they want to stand-up a communist government and call int the United States of America, more power to 'em.
12.5.2008 12:45pm
Don Kilmer (mail):
Oren wrote:


If you make no claim of telepathy then you could not possibly justify the claim that Justices were "being willfully ignorant of history and constitutional construction". That assertion requires knowing unknowable things about the internal process of their mind. At most, you can take cboldt's position that you believe their reasoning suspect and have doubts about their sincerity.


Because except for the Silviera case, all of the cRKBA cases I am familiar with (e.g., Hickman v. Block) are conclusory pronouncements of policy, not legal/rational opinions with any attempt at research and/or analysis.

I kind of grade judicial opinions the way I do student papers. If I don't see evidence of thinking in the written material, I assume none took place. Furthermore, if research material is available but unutilized by the student, I assume the ignorance is willful.
12.5.2008 1:41pm
einhverfr (mail) (www):
cboltd:

Not necessarily. As you know, everything in the law turns of definition of terms, and terms are often defined outside of commonly-associated meaning. If rocket-propelled items (bazookas, RPG, SAM, etc.) are defined outside of the scope of the term "arms," then an outright ban on their existence would not be an infringement against "arms."


This is the sort of issue that leads to problems of interpretation. How can you be sure you are defining "arms" not to include SAM's etc, just because of policy decisions? Is it just because SAMs didn't exist in 1789 (a silly theory I think since that would limit 2A to muzzle-loading black powder weapons)? There is a bigger distinction today between military and civilian firearms than there was in 1789.

I think we are better off with a balancing test. SAM's etc. can be banned because the potential for real civil harm is greater than the militia interest they support. Same with nuclear demolition munitions and RPG's.

BTW, the argument that 2A only applies to one-man-portable weapons doesn't get you out of the nuke problem since the US armed forces do have one-man-portable backpack nukes....
12.5.2008 3:22pm
Oren:

If rocket-propelled items (bazookas, RPG, SAM, etc.) are defined outside of the scope of the term "arms," then an outright ban on their existence would not be an infringement against "arms.

Isn't this precisely the sort of definitional contortion you were just arguing against?! I'm really confused by this latest twist because RPGs are definitely arms.
12.5.2008 7:46pm
GF23:
Oren

If you make no claim of telepathy then you could not possibly justify the claim that Justices were "being willfully ignorant of history and constitutional construction". That assertion requires knowing unknowable things about the internal process of their mind.

I couldn't agree more. Which leaves me baffled as to how the same person could have said:

It's assumed by all conservatives that conservatism is self-evidently correct and so there is no effort to expound the ideas that Buckley said were critical to conservatism.

I mean, he was just reading the minds of 11 people. You're doing it to millions.
12.5.2008 9:00pm
Oren:
I believe there was a "seems" in the previous sentence that was meant to modified that. If there isn't, then it should be "it seems to be assumed ...".
12.6.2008 9:15am
cboldt (mail):
-- Isn't this [distinction between rocket propelled and powder-fired] precisely the sort of definitional contortion you were just arguing against?! --
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I introduced the notion just to make the point that "infringed" or not depends on the definition of "arms." I wasn't advocating one side or the other on the definition of "arms."
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At bottom, this argument is merely over which term (as between "arms" and "infringed") will be contorted in order to limit access to rocket-propelled munitions.
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Simultaneously, we have short barrel shotguns and assault weapons that are easily in the realm of "arms," yet the right to possess is effectively infringed.
12.6.2008 9:52am
6Kings (mail):

SAM's etc. can be banned because the potential for real civil harm is greater than the militia interest they support. Same with nuclear demolition munitions and RPG's.


In the current environment here in the US, the balance is tilted toward your shortsighted thinking. The problem comes when the militia interest suddenly becomes critical and SAMS, RPGs, etc are not available....oops. Your idea just effectively neutered the militia. I bet everyone will thank you for your infringement then eh?
12.7.2008 6:49pm