pageok
pageok
pageok
Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:

The story is at CNSNews.com, and it begins:

Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment's commandment that the right to keep and bear arms shall not be infringed.

Now it might have been more informative to say that she was one of the three judges on the panel; but let's set that aside, and focus instead on the following:

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, "guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'"

"There seems to us no doubt," the Supreme Court said, "that the Second Amendment conferred an individual right to keep and bear arms."

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right — and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local — the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

I don't think that's quite fair. The "and therefore" phrase sounds pretty clearly like part of the assertion about what "the Heller decision held." But that's not what Heller held at all: Heller specifically said that it was holding nothing about the application of the Second Amendment (via the Fourteenth Amendment) to state and local governments. (Footnote 23 of Heller: "With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case ....") Let's go on:

"And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls."

In its 2008 case, the Supreme Court's took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state's ability to outlaw private militia groups.

"Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations," the court ruled. "This does not refute the individual-rights interpretation of the Amendment."

But aggain that's not right: Heller explicitly said (in the same footnote 23 I mentioned above) that "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Presser, in the Court's view, did have some bearing on something beyond a state's ability to outlaw private militia groups — in fact, it had bearing on the very question of whether the right to bear arms applied to the states. Moving on:

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

Actually, the Supreme Court has expressly held that the Seventh Amendment right to civil jury trial doesn't apply to the states, and that neither does the Grand Jury Clause of the Fifth Amendment. Unless I'm mistaken, the Excessive Bail and Excessive Fines Clauses of the Eighth Amendment haven't been incorporated, either, though their not being incorporated isn't as well-settled as it is for the Seventh Amendment or the Grand Jury Clause. Moving on again:

The Fourteenth Amendment reads, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws."

Here the story omits precisely that constitutional clause (the Due Process Clause) that the Court has indeed used to incorporate most of the Bill of Rights against the states. Moving on again:

Sotomayor's ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

Surely the Ninth Circuit is not reliably liberal; it has plenty of conservative judges, who get their way often enough. (The CNSNews story came out before the conservative panel on the Seventh Circuit ruled against incorporation.)

One can certainly anticipate that Judge Sotomayor is likely to be no friend of the individual right to bear arms, as applied to the federal government or to state and local governments; that seems likely given the political wing from which she comes. (This isn't certain, as liberal Judge Pregerson's and conservative Judge Posner's views make clear, but it's the likely bet.) One can certainly criticize the Maloney opinion, as well as the Seventh Circuit opinion, which I in some measure criticized earlier today. And in particular one can certainly argue that the incorporation of the Second Amendment via the Due Process Clause isn't foreclosed to lower courts, because past Supreme Court decisions rejecting incorporation focused on the Privileges or Immunities Clause.

But that's a pretty subtle argument, and if made would show at most that the Maloney opinion was pretty subtly wrong. The CNSNews story avoids the subtlety, and seems to assert that the Maloney opinion was patently and blatantly wrong. But in doing so, it seems to me, the story itself errs, several times and in pretty big ways.

Related Posts (on one page):

  1. Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:
  2. More on Sotomayor and the Second Amendment:
  3. Sonia Sotomayor versus the Second Amendment:
gwinje:
[smmmmack]
6.3.2009 1:27am
Gene Hoffman (mail) (www):
Though I concur with the analysis of the piece - today has been replete with various folks ignoring the word "required" in footnote 23.

-Gene
6.3.2009 2:03am
Guy:
Just wanted to thank you for pointing out that the rights to civil jury trials and the requirement for an indictment by grand jury have never been considered to be incorporated by the Fourteenth Amendment. That's a point that even lawyers tend to forget when discussing the Second Amendment, and one of my little con law pet peeves. That and lay people making arguments about the First Amendment when it's clear that they've never even heard of the incorporation doctrine. ("It only says that 'Congress' shall make no law!")
6.3.2009 3:11am
Guy:
Although CNSNews can perhaps be forgiven for mistakenly thinking that incorporation operates under the Privileges and Immunities Clause; The Slaughterhouse cases are responsible for a rather awkward jurisprudence on the issue.
6.3.2009 3:27am
Glen Alexander (mail):
Sure, as a piece of legal analysis, the story fails.

But it does tap into the average citizen's logical understanding of "constitutional law." If Heller recognized the right to keep and bear arms (or, more fundamentally, a right to self-defense) as a pre-existing natural right, then it follows that the right applies equally and everywhere. Selective incorporation is a pretty arcane concept for most Americans, and even after multiple explanations, many people have a hard time accepting it.

So it really shouldn't be any surprise that most people don't get the nuanced point that "shall not be infringed" applies only to the Federal government, notwithstanding Professor Somin's rationally ignorant voter hypothesis. Especially when it could apply to state and local governments with a simple Supreme Court decision, albeit one that will likely be perceived as cryptic and confusing.

Given the poor "signal-to-noise ratio" of public debate on basic Constitutional rights and Court nominations, is this article really that far off-base?
6.3.2009 3:59am
Guy:
Glen, it seems pretty clear to me that the article's primary purpose was to paint Sotomayor as an anti-gun zealot and a bad judge. It did this by misrepresenting the standing jurisprudence on the Second Amendment, and this should be pointed out. As for the "signal-to-noise ratio" this article, in my opinion, seems to contribute a lot more "noise" to the discussion than "signal". Some of the mistakes are probably honest, but other inaccuracies and omissions appear to be measured to help CNSNews' case against Sotomayor, such as not pointing out that she was only part of a panel to make the ruling, and suggesting that it was somehow irrational to hold that the Second Amendment might not apply to states.

Yes, the average American won't understand selective incorporation, but when you try to cast aspersions on a judge for applying the doctrine correctly, you have a duty to point out to your readers at least that it exists, and backs the judge up.
6.3.2009 4:49am
Brett Bellmore:
The standing jurisprudence on the Second amendment IS the product of anti-gun zealots and bad judges, so it's at least understandable that you'd assume, if you weren't up on the arcane details of precedent, that a judge who went along with it was both. After all, the Maloney decision WAS patently and blatantly wrong. It was just patently and blatantly wrong in a way existing precedent permits.
6.3.2009 6:09am
cboldt (mail):
-- After all, the Maloney decision WAS patently and blatantly wrong. It was just patently and blatantly wrong in a way existing precedent permits. --
.
I wouldn't use "permits," as that implies the binding precedents have been fairly read and applied.
.
I'd educate the public on the issues decided and the procedural postures of Miller and Presser (and draw Cruikshank in to illustrate how it, in the part about the 2nd, was not reviewing a government power to regulate the RKBA), and then show the public how those decision have been consistently read by the Circuits and subsequent SCOTUS. Perhaps they'd realize that the incorporation schtick is a canard used to cover blatant acts of rights stripping.
.
The public can understand the issue in Presser (does the 2nd amendment protect the right to parade without a permit?), they can read Miller and figure out that he wasn't convicted, and that the lower court found the 1934 NFA to be unconstitutional.
.
It's bloody obvious why the Courts won't permit a fresh review of the fundamental precedents, instead relying on the interpretations offered up in later decisions. But it's not obvious why the self-professed gun right advocates won't educate the public about the Miller and Presser cases.
6.3.2009 6:25am
Guy:
If the article were just arguing that the Second Amendment is binding on the states, while acknowledging that the Courts have never said that, that would be one thing. But it isn't doing that, it's an attack piece trying to make Sotomayor look like a rogue judge, or at least to make her decision look more unusual than it is, and it deliberately obfuscates the facts to do so. To rule that the Second Amendment was incorporated in spite of Scotus' clear reluctance to do so would be the less supported action. The Second Amendment on its own is not binding on the states, this is uncontroversial in legal circles. To find it binding on the states via incorporation would constitute a significant expansion of substantive due process, which is the sort of thing usually left to the Supreme Court.
6.3.2009 6:52am
cboldt (mail):
--Presser, in the [Heller] Court's view, did have some bearing on something beyond a state's ability to outlaw private militia groups — in fact, it had bearing on the very question of whether the right to bear arms applied to the states. Moving on [within Heller]:

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.
--

I understand how reverting to Heller makes sense in complete context. But at the same time, the OP omits Presser's bearing directly on the question of whether the right to bear arms applied to the states.

... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms ...
6.3.2009 7:14am
Brett Bellmore:
I'll say this right now: She's not a rogue judge, her decisions aren't unusual.

And that's a damning thing to say about the judiciary.


But it's not obvious why the self-professed gun right advocates won't educate the public about the Miller and Presser cases.


There are a number of reasons:

It's expensive to educate the public when the MSM is working for the other side.

Half the population has an IQ of less than 100.

And they do, they do. Just not enough.
6.3.2009 7:16am
Donald Kilmer (mail) (www):
It is unfair to Judge Sotomayer to characterize the per curium opinion in Maloney as anti-Second Amendment.

There is certainly strong evidence that she is no friend of RKBA, but the better thing to do, is to ask her during her confirmation hearings if she believes in the right of self defense and whether that includes the right to own appropriate weapons to exercise that right.

See my comments at: Lou Dobbs, CNN
6.3.2009 7:23am
cboldt (mail):
-- it's an attack piece trying to make Sotomayor look like a rogue judge, or at least to make her decision look more unusual than it is, and it deliberately obfuscates the facts to do so. To rule that the Second Amendment was incorporated in spite of Scotus' clear reluctance to do so would be the less supported action. The Second Amendment on its own is not binding on the states, this is uncontroversial in legal circles. --
.
I find the juxtaposition of your deliberate obfuscation criticism with your (accurate) observation that the second amendment not being binding on states is uncontroversial in legal circles to be humorous.
.
I find it humorous because the legal circles rely on deliberate obfuscation to preserve the illusion that SCOTUS has been mute on the point of states power to prohibit the people from keeping and bearing arms.
6.3.2009 7:26am
Guy:
Cboldt, the passage from Presser you cite isn't talking about a personal right to bear arms, but rather the Federal government's authority to keep a reserve force that the states cannot abolish. I would think that the existence of the National Guard satisfies the states' obligations as far as this is concerned.
6.3.2009 7:29am
Guy:
So you view the legal profession as engaging in deliberate obfuscation. However, their alleged obfuscation still does not excuse that of this article.
6.3.2009 7:32am
cboldt (mail):
-- It's expensive to educate the public when the MSM is working for the other side.
Half the population has an IQ of less than 100.
--
.
The NRA and other advocates already spend a certain amount of time and money educating their own members. NOWHERE does this organization paint a correct read of Miller or Presser. Most gun rights advocates accept the false wisdom of the Circuits, that the Supreme Court held, in Presser, that the states may prohibit the people from keeping and/or bear arms, and this because the RKBA originates in the 2nd amendment, and that amendment only restrains the feds.
.
It's bad enough that the Circuits (and now SCOTUS) turn Presser and Miller upside down -- but to have self-professed advocates endorse those actions (silence is approval) as "good law" is mind boggling.
6.3.2009 7:35am
cboldt (mail):
-- the passage from Presser you cite isn't talking about a personal right to bear arms, but rather the Federal government's authority to keep a reserve force that the states cannot abolish. I would think that the existence of the National Guard satisfies the states' obligations as far as this is concerned. --
.
I covered this exact point yesterday, in a conversation with Anderson. Here is what the United States Supreme Court said about your argument, again from Presser:
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 as 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 you view the legal profession as engaging in deliberate obfuscation. --
.
On the point of 2nd amendment jurisprudence, YES. The directly on-point passage above is sent down the memory hole, as you just did. It's worse than obfuscation for political ends, its obfuscation designed to strip the people of the means they require in order to keep the government under their thumb.
.
I think the article undercriticises Sotomayor. That it is technically incorrect as to how "the law works," doesn't bother me in the least.
6.3.2009 7:43am
cboldt (mail):
-- It is unfair to Judge Sotomayer to characterize the per curium opinion in Maloney as anti-Second Amendment. --
.
As far as I'm concerned, only on the basis that nunchucks aren't arms.
.
IIRC, the CPSC has effectively banned clacker-ball toys that lack a rigid member between the pivot and each moving ball. They aren't covered by the 2nd amendment either. Neither are Jarts (lawn darts).
.
But Judge Sotomayor has signed on to a particular read and application of the Presser decision, and it is PERFECTLY fair to review the Circuit's performance in that regard. The 2nd Circuit's application of Presser is as anti-RKBA as it gets -- and also flies in the face of sound jurisprudence.
6.3.2009 8:03am
Sasha Volokh (mail) (www):
Justice O'Connor wrote in Browning-Ferris v. Kelco Disposal (1989): "In addition, the Court has assumed that the Excessive Bail Clause of the Eighth Amendment applies to the States. See Schilb v. Kuebel, 404 U. S. 357, 404 U. S. 365 (1971). I see no reason to distinguish one Clause of the Eighth Amendment from another for purposes of incorporation, and would hold that the Excessive Fines Clause also applies to the States."
6.3.2009 8:14am
Scott Huminski (mail):
SOTOMAYOR IGNORANT OF THE LAW

Sotomayor flunks on getting the most basic principle of appellate law wrong -- the Standard of Review.

In Huminski v. Haverkoch, 11/5/04, 03-7036 2d. Cir., Sotomayor reveals an ignorance of the law by failing to apply the correct standard of review to an important civil rights case. She found appellate review was for reversible error when the correct standard of review for such a case (summary judgment) is De Novo.

A simple google on, "standard of review for summary judgment de novo" supplies tens of authorities on the issue. I guess Sotomayor would rather be wrong than google on such a rudimentary issue. She also could have assigned her flock of law clerks to research the issue. Further, on a motion for rehearing specifically pointing out her error she did not act and correct it.

Here is the link to the Sotomayor summary order from this case in which she presided over.

Sotomayor decision

Where the order states "For the Court", it refers to Sotomayor and the 2 other judges on the case.

See a different case of mine, Huminski v. Corsones, No. 02-6201 (2d Cir. 10/07/2004) ("We review a district court's grant or denial of summary judgment de novo.")

— Scott Huminski
(202) 239-1252
6.3.2009 8:16am
Guy:
The factual basis has changed since then, The Federal government no longer relies on unorganized militia for defending the country as a last line of defense- that's what the National Guard is for, and IMHO does it much better. That passage would only be applicable to laws passed by states that interfere with the Federal government's ability to defend the Country and keep a reserve. And if that were the case, I think we would be hearing the Fed's complain about it.

Anyway, It could hardly be argued that the possession of nunchaku makes one better able to defend the country against invasion.

Also, your characterization of this "obfuscation" (Seems more like a good faith opinion to me) as "...strip[ping] the people of the means they require in order to keep the government under their thumb" is incongruous with the rationale used your citation of Presser. The purpose for this armed reserve is to supplement the standing army, not to keep the government in check.

Side Note: As a practical matter, I don't see how any armed person or group could keep the government in check, what with it having massively superior firepower and resources. The people at Waco tried to keep the government in check but their numerous weapons were woefully inadequate against the FBI, which isn't even the military.
6.3.2009 8:20am
cboldt (mail):
-- Also, your characterization of this "obfuscation" (Seems more like a good faith opinion to me) as "...strip[ping] the people of the means they require in order to keep the government under their thumb" is incongruous with the rationale used your citation of Presser. --
.
That point of view resembles the collective rights theory.
.
Sending an on-point paragraph from Presser down the memory hole is obfuscation. That you, like Scalia did in Heller, can wave the "time wand" and argue in the nature of "but the situation is different now, compared with then," doesn't cure the initial omission of on-point binding precedent.
.
As for absence of complaint from the Feds - of course they don't complain. No government wants its subjects to be able to assert force. The United States was a historical anomaly in that regard.
6.3.2009 8:38am
Melancton Smith:
Guy wrote:

Side Note: As a practical matter, I don't see how any armed person or group could keep the government in check, what with it having massively superior firepower and resources. The people at Waco tried to keep the government in check but their numerous weapons were woefully inadequate against the FBI, which isn't even the military.


You are woefully mistaken. The reason Waco failed was due to it being a very small incident (involving very few 'insurgents').

Were the militia (as originally conceived) to rise up against the federal government there'd be no contest. The feds wouldn't stand a chance.

How would they combat a widespread insurgency? Nukes, bombers, and a lot of the big hardware would be useless. Some soldiers would defect.

It all depends on the 'righteousness' of the cause. If enough citizens are driven to rise up as a militia, they win. Too few, the cause is not sufficient...they lose.
6.3.2009 9:13am
pintler:

As a practical matter, I don't see how any armed person or group could keep the government in check, what with it having massively superior firepower and resources.


I'm genuinely interested in understanding the reasoning here. My reading of military history shows numerous examples of successful guerrilla wars - the American revolution, the Peninsular war, the Yugoslav partisans in WWII, the Afghans against the Soviets, the Vietnamese against the French, etc. There are also examples like the first Warsaw rising which were unsuccessful in one sense - the partisans died - but successful in the sense they made their deaths expensive for the enemy, rather than selling them on the cheap.

Why are those examples not applicable today?
6.3.2009 9:18am
cboldt (mail):
-- Side Note: As a practical matter, I don't see how any armed person or group could keep the government in check, what with it having massively superior firepower and resources. The people at Waco tried to keep the government in check ... --
.
An observation, then an opinion. It's ironic that the confrontation at Waco was itself rooted in enforcement of a firearms law. If a modern federal court were to ever render a decision that the very firearms law at issue in that confrontation was unconstitutional (i.e., if a modern federal court ever properly construed and applied Miller), the ramifications would be huge; there is a substantial amount of government force and legitimacy invested in status quo. [Same goes for the disconnect between prohibition and the WOSD]
.
IMO, you are correct as a practical matter. Resistance is futile. Not only will the public lose a battle of force, it will also lose a correct application of the law and read of history. Might makes right, power flows from the barrel of a gun. That doesn't mean the borg is acting within the confines of the constitution.
6.3.2009 9:21am
DiverDan (mail):
Just as an aside, there is one substantive difference between the 7th Circuit decision in NRA v. Chicago and the 2d Circuit per curiam opinion in Maloney v. Cuomo which Sotomayor joined. In Maloney, the Court was faced with a direct 14th Amendment Due Process challenge; in oder to apply the "rational relationship" test to the statute at issue, the Court was required to find that it did not infringe upon a "fundamental right". However, the opinion in Maloney just assumes, without any analysis, authority, or argument whatsoever, that the possession of a weapon that can be used for self-defense (in that case, a nunchuka or "chuke stick") is NOT a "fundamental right". Since the case law on selective incorporation also focuses on whether or not a right is considered "fundamental" in judging whether or not it is incorporated through the 14th Amendment and binding on the States, the fact that Sotomayor is willing to just assume the conclusion that a RKBA is not "fundamental", without any analysis or authority, ought to be more than a little frightening.
6.3.2009 9:36am
Guy:
Cboldt, If you insist on getting technical with stare decisis, your citation of Presser may be obiter dicta, as the determination that the law didn't violate the states' alleged obligation not to interfere with the militia was sufficient to dispose of the question, without ruling about whether such an obligation exists, and it's a standard rule that the Court should avoid ruling on Constitutional questions when the factual and statutory issues are enough to settle the case. At any rate, I suspect if any court did treat that as binding precedent, the Supreme Court would respond by setting a new precedent that considers the relevance of that argument to the modern situation.

Melancton, Ok, forget Waco, consider the Civil War, the South lost, as I recall? And was unable to resist the North's occupation after its defeat? I don't anticipate that the nation will ever be divided any more greatly than it was at the time, and the imbalance between the weapons possessed by the government and the weapons possessed by the people has only grown greater since then.
6.3.2009 9:49am
Guy:
Pintler, in those situations the government was an external power. Any uprising in the United States against its own government would have divided support at best (as in the civil war) I suppose I'd be willing to concede the point that there's a slim chance the government might lose if the uprising was a massive majority of the population- although the government has much more incentive to fight back in that situation than a colonial power; France could give up on Vietnam without ceasing to exist, all they had to do was decide that continuing the war was more expensive than giving up the colony. It's harder to get a powerful government to give up when the stakes are higher (again, see the civil war and reconstruction). Incidentally, It's likely we would have lost the Revolution if we hadn't gotten France's help.
6.3.2009 9:58am
Suzy (mail):
I just read a newspaper article this morning, quoting a David Kopel as saying Sotomayor is "dishonest" because of this opinion. Same Kopel?
6.3.2009 10:32am
PubliusFL:
Guy: What would keep the military unified and following orders if the government were to try to use the military to put down resistance to, say, gun confiscation? Military members are are disproportionately likely to be gun owners and have gun-owning families.
6.3.2009 10:37am
Guy:
Cboldt, well, it was a side note, not really related to the legal issue.

I'm not sure the Borg comparison is fair. Even viewed in a negative light, I'd say at my worst I come off like the Federation - laughably unrealistic liberal ideals, and an annoyingly smug sense of moral superiority that makes any sane person want to slap me across the face. ;)
6.3.2009 10:42am
PGofHSM (mail) (www):
Suzy,

Same Kopel.

Something I've always wondered about 2nd Amendment advocates and never gotten a good answer on: Do y'all think the Japanese who were forced into internment camps during WWII should have responded to government agents with force? That's always struck me as exactly the kind of situation in which a citizen might defend himself against a democratically-elected government, where the majority is taking away that citizen's liberty based on his ethnicity rather than on an individualized determination, but I've never seen it mentioned as a historic example to illustrate what happens to a population that doesn't arm itself against the government.
6.3.2009 11:16am
Cornellian (mail):
Guy,

I'm more of a Dominion/Founders type myself.
6.3.2009 11:24am
http://volokh.com/?exclude=davidb :

Something I've always wondered about 2nd Amendment advocates and never gotten a good answer on: Do y'all think the Japanese who were forced into internment camps during WWII should have responded to government agents with force? That's always struck me as exactly the kind of situation in which a citizen might defend himself against a democratically-elected government, where the majority is taking away that citizen's liberty based on his ethnicity rather than on an individualized determination, but I've never seen it mentioned as a historic example to illustrate what happens to a population that doesn't arm itself against the government.

Good question and a tough call. Particularly given the wartime setting and the resulting paranoia, it was a very bad situation indeed for the Japanese-Americans. I think any objective observer has to concede that they may very well have died en masse had they tried coordinated armed resistance.

As a supporter of the RKBA, the best I can say is that if the Japanese-American community had been armed to the teeth prior to the internment, and had been very vocal about their opposition to the plan, they might well have received better treatment. We'll never know.

But your question, though fair, is in some ways reductionist. The RKBA isn't just about shooting the government. It's about having an option of self defense -- admittedly imperfect and limited -- that nevertheless gives the government at least some pause before it messes with you.

The RKBA is not a cure-all, and being armed sure isn't going to save you from the government in all scenarios. It may well not have saved the Japanese-Americans. My Garand won't likely shoot down an Apache helicopter.

We do know, however, that disarmed populations are at greater risk from totalitarian governments. To say the least.

The imprisoning of Japanese-Americans in WWII was a "top five" low point in U.S. history. I do think armed resistance would have been morally justifiable.
6.3.2009 11:43am
Gene Hoffman (mail) (www):
Armed defensive resistance to state and local governments to further civil rights is a relatively recent phenomenon. See The Deacons for Defense and Justice - http://en.wikipedia.org/wiki/Deacons_for_Defense_and_Justice

-Gene
6.3.2009 12:01pm
Guy:
Publius, I'm not too interested in discussing the hypothetical much further, since, as I already said, it's irrelevant to the legal issue. But I find it hard to resist mentioning that your situation a) would apply whenever the dispute was over something the military tends to favor, and b) does not actually depend on any material support from the general population in the uprising.

Cornellian: Weyoun and the Female Changeling: least two-dimensional Star Trek Villains ever? discuss. (Gul Dukat's pretty multifaceted)
6.3.2009 12:14pm
pintler:

Pintler, in those situations the government was an external power.


That's debatable (I won't say arguable :-)) for the American revolution. The Chinese revolution was certainly domestic. I would also point out that the U.S. is one of the few places in the world where foreign invasion is fairly implausible. I find it really odd that e.g. the French or Danish populations during the cold war weren't preparing to resist a Soviet occupation.

Or for another example - I would speculate that Moscow's willingness to give Yugoslavia a lot longer leash than other Eastern European states might have had something to do with how effectively the Yugoslavs opposed the Nazis (the terrain also helped).


Any uprising in the United States against its own government would have divided support at best (as in the civil war) I suppose I'd be willing to concede the point that there's a slim chance the government might lose if the uprising was a massive majority of the population-


I agree that a revolution needs broad based support. Revolutionaries who are opposed by the vast majority of the population are a law enforcement problem, e.g. the Weather Underground.

Once the revolutionaries get a massive majority, they will win regardless, e.g. the French or Russian revolution.

The democratization of force argument plays in the middle area - it increases the cost of despotic rule; the despot can't maintain his rule merely by the support of a single digit percentage military caste, for example. You can't just get a couple of legions to swear fealty to yourself and announce you're taking over.

FWIW, and partly for the reasons you are suggesting, the 2nd amendment unorganized militia argument isn't the best model for preventing tyranny, the Swiss model is. The Swiss military, heavy weapons and all, isn't distinct from the population at large.
6.3.2009 12:21pm
A. Zarkov (mail):
Why does the doctrine of incorporation just skip the 2A, even though it's been held to be a fundamental right? I think most people want a clear answer this question, and EV doesn't provide it, except obliquely. It's really not enough to say that incorporation stems from the due process clause of 14A, and somehow this means incorporation skips 2A. The other excuse seems to be that SCOTUS hasn't gotten around to ruling on that yet.

One can't help but conclude the whole thing is political. SCOTUS doesn't want to invalidate all those state and local laws regulating guns because that would be too pervasive a change. So they punt. Funny this didn't stop them with the Roe decision.
6.3.2009 12:36pm
Guy:
I would also point out that the U.S. is one of the few places in the world where foreign invasion is fairly implausible.

Says you, I've got my eyes on those Canadians, all that politeness, they must be hiding something.

But, as you seem to have alluded to in your post, This is a highly hypothetical and far-fetched discussion. Another reason I think we should drop this particular line of the debate before it gets too inflamed. It's probably my own fault for mentioning Waco, my bad.
6.3.2009 12:39pm
cboldt (mail):
-- If you insist on getting technical with stare decisis, your citation of Presser may be obiter dicta, as the determination that the law didn't violate the states' alleged obligation not to interfere with the militia was sufficient to dispose of the question, without ruling about whether such an obligation exists, and it's a standard rule that the Court should avoid ruling on Constitutional questions when the factual and statutory issues are enough to settle the case. --
.
I discussed this point with a poster, Oren, last week or so. The section that the Circuits cite as compelling a decision is likewise, and in the same way, obiter dicta. The Presser decision is about the power of the states to limit parades by requiring a parade permit. Any discussion about the 2nd is a sideline, in this case a necessary sideline because Presser argued his parade enjoyed 2nd amendment protection.
.
-- I'm not sure the Borg comparison is fair. Even viewed in a negative light, I'd say at my worst I come off like the Federation --
.
LOL. Sorry if you thought my reference to "the borg" was personal toward you. It is, I suppose, if you operate as an agent inclined to expand government power until all submit. I had assumed that you, like me, are just a private citizen who is obliged to follow the law as set down by the borg; and who doesn't have any meaningful input into the law the borg sets down.
6.3.2009 12:57pm
Guy:
Zarkov, to deny the political component to anything the Supreme Court does would be a legal fiction (comforting though it may be) but I wouldn't say the exclusion is completely arbitrary.

The parts of the Bill of Rights that have been incorporated into due process are rights that we generally consider to be absolutely necessary for a free and just society (the First Amendment guarantees freedom of conscience, we also have safeguards reflecting the principle "innocent until proven guilty" incorporated, provisions to ensure that everyone gets a fair trial, and so on).

Admittedly, some feel that the right to keep and bear arms is similarly necessary, but that position doesn't have the same degree of broad support that the others do, and the arguments that it's as necessary aren't as strong. Of course, the controversial Right to Privacy arguably (caught myself, damn that's a hard habit to break) suffers the same problems, so that's maybe not the best explanation. Then again, the huge issue that's created by Roe v Wade could serve as a cautionary tale about expanding substantive due process too far. (full disclosure: I'm not too keen on giving up the Right to Privacy, since it's relevant to Lawrence v Texas and I'm gay.)
6.3.2009 1:02pm
cboldt (mail):
-- Why does the doctrine of incorporation just skip the 2A, even though it's been held to be a fundamental right? --
.
It has NOT been found to be a fundamental right. Heller discovered that the RKBA was an individual right. The dissent in Heller discovered it was an individual right too, that attached (only) to every individual member of the government's armies.
6.3.2009 1:05pm
pintler:

Says you, I've got my eyes on those Canadians, all that politeness, they must be hiding something.


Good point, always expect the unexpected :-)


But, as you seem to have alluded to in your post, This is a highly hypothetical and far-fetched discussion.


I don't know about the hypothetical and far fetched. If you say 'is a revolution remotely likely in the US in my lifetime' I would have to say 'No' (with the caveat that I don't think too many people in 1925 Weimar Germany would have predicted where they would be in 10 years).

If you say 'will the US population have to fight for its freedom sometime in the next 5 centuries', then I think the historical precedents suggest the answer is almost certainly yes. Maybe one's outlook depends on whether you think in terms of years, decades, or centuries; I tend towards the latter :-)


I think we should drop this particular line of the debate before it gets too inflamed.


My apologies if I gave any cause for inflammation!
6.3.2009 1:09pm
Guy:
cboldt, I don't mean to be dense, but I'm afraid I don't see how that section is obiter dicta (you're referring to the holding that the Second Amendment only applies to the Federal government, right?) In this case the Court was faced with the question of whether the law was Constitutional, and ruling that the Second Amendment doesn't apply to states was necessary to that outcome, unlike the supremacy argument (is that the best name for it?) the law really would have been unconstitutional if the Court had gone the other way on the constitutional question.

I realized your Borg comment wasn't directed at me, but I couldn't resist the temptation to make a Star Trek joke slamming the Federation.
6.3.2009 1:10pm
Brett Bellmore:

The parts of the Bill of Rights that have been incorporated into due process are rights that we generally consider to be absolutely necessary for a free and just society


Yeah, like I said, the rights judges happen to approve of. I think Congress was pretty clear when they discussed the 14th amendment, that it was supposed to incorporate 1-8, and not leave it up to judges to decide which amendments it applied to. It says, after all, "privileges and immunities", not "fundamental privileges and immunities". If it's a P&I at all, it's supposed to be incorporated.
6.3.2009 1:15pm
A. Zarkov (mail):
cboldt:

"It has NOT been found to be a fundamental right."

Ok-- "natural" right, not fundamental right. I'm taking that from the text above. EV didn't object to the "natural right" part some I'm assuming that's in the Heller decision at least somewhere in dicta.

I repeat. Why should incorporation skip over 2A, when RKBA is a natural right? It seems far fetched that Roe applies to the states and 2A doesn't.
6.3.2009 1:32pm
Guy:
Brett, believe it or not, I'm inclined to agree with you. Unfortunately the Court's decision in the Slaughterhouse cases effectively neutered the Privileges and Immunities Clause, (by ignoring its plain meaning IMO), so we're stuck with the much more fickle concept of substantive due process instead.

Pintler, Not too far-fetched with a broad enough perspective, I guess, but in the event of a massive uprising jurisprudence doesn't amount to much. The central issues in the Civil War (slavery, the right to secede, and the relation between federal and state powers) were decided by the outcome of the war, not the Court. In fact the Dred Scott decision had just previously purported to settle those very issues in the opposite direction. When the shit hits the fan, everything's up for reinterpretation. And no, you didn't show any signs of being inflamed, maybe I was just being overcautious.
6.3.2009 1:34pm
cboldt (mail):
-- I don't see how that section is obiter dicta (you're referring to the holding that the Second Amendment only applies to the Federal government, right?) --
.
Presser objected to a law that required him to get a parade permit. He said that the parade permit law didn't apply when the parade was conducted with guns, because the 2nd amendment protects a right to parade with guns.
.
The Supreme Court said (my paraphrase in quotes, not their words), "This is not a case about the right to keep and bear arms. This is about the power of states to preserve order by requiring parade permits. If this WAS a case about the RKBA (but it isn't), the state do not have the power to prohibit the people from keeping and bearing arms."
.
Well, it's not about the RKBA - yet the Circuits say the case was all about the RKBA, and that the Supreme Court, in Presser, says the states may prohibit the people from keeping and bearing arms. Trouble is, this isn't a second amendment case, so discussion about the 2nd amendment (while necessary because that is the ground that defendant said gave him the right to parade) is not necessary to reach the decision that a requirement to obtain a parade permit does not run afoul of the 2nd amendment.
6.3.2009 2:15pm
Melancton Smith:
Guy wrote:


Melancton, Ok, forget Waco, consider the Civil War, the South lost, as I recall? And was unable to resist the North's occupation after its defeat? I don't anticipate that the nation will ever be divided any more greatly than it was at the time, and the imbalance between the weapons possessed by the government and the weapons possessed by the people has only grown greater since then.


The Civil War was sectional. Residents of New York didn't feel the impact when Atlanta was shelled.

A general insurrection would occur everywhere. Chicagoans would certainly mind it if you shelled Chicago to blast out a band of insurrectionists. Who, by the way, look just like everyone else.

I suppose it is possible we could have another sectional rebellion, say Montana attempting to secede...but I find it unlikely. People don't have the same loyalty to their state that they once had.

No, any future rebellion in the US would most likely be a non-sectional insurrection. You'd have to clamp down on more civil liberties (i.e. 4th and 5th amendment rights) in order to flush them out. However, said clamping would only cause more folks to join the insurrection. I hate interjecting movie quotes into discussions such as this, but recall Princess Leia to Governor Tarkin. The more you tighten your grip the more star systems fall through your hands or something to that effect.
6.3.2009 2:17pm
cboldt (mail):
-- ruling that the Second Amendment doesn't apply to states was necessary to that outcome --
.
No, it wasn't. The outcome that states may require parade permits was justified on other grounds, namely that parade permitting is a matter of local/state police power.
It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

That is the reason the Illinois law was upheld. It (the Illinois law requiring parade permits) is a legitimate police power. The 2nd amendment is about the right to keep and bear arms, not about the right to conduct a military parade.
6.3.2009 2:26pm
pintler:

I guess, but in the event of a massive uprising jurisprudence doesn't amount to much.


Precisely. That's the anti tyranny argument for the 2nd - that it preserves the ability of the populace to save themselves when all else has failed, and that realizing the consequences of sparking a successful insurrection may offer some deterrence to a budding tyrant. Should he resign in the face of the general strike, the impeachment, the massive protests, etc, or declare martial law and have the troops open fire? The hope is that the 2nd makes retirement look like a better deal.

The hope, I think, is that having a population with the attitude of 'By Gum, we revolted once, and if things get bad enough, we will again' goes a long way towards making revolts unnecessary.
6.3.2009 2:52pm
cboldt (mail):
-- Why should incorporation skip over 2A, when RKBA is a natural right? --
.
The legal answer: The Circuit Courts blame the United States Supreme Court, by isolating part of Presser's language, "the [second] amendment is a limitation only upon the power of congress and the national government, and not upon that of the state" and asserting that this compels the Circuits to uphold state laws that prohibit the people from keeping and bearing arms.
.
The hapless pro-gun lobby gives the Circuit Courts a pass on this, by agreeing that the Circuits are correctly reading and applying Presser.
.
The "real" answer: The state and federal governments are inclined to minimize the ability of the people to assert force; and they are able to fool the public about what the constitution stands for.
6.3.2009 3:08pm
Guy:
Cboldt, you're right, I misread the decision. If one is obiter dicta, then they both are. This isn't necessarily a problem for my position, though, since if neither is binding precedent, then they are only relevant for their persuasive authority. The rationale that the Second Amendment only applies to States is clear: the precedent in Barron v Baltimore holds essentially the same conclusion (applied to a different amendment). The rationale for the supremacy argument (as I'll continue to call it until someone suggests a better name), on the other hand, has not stood up to the test of time very well at all.

Pintler, Okay, you've managed to convince me that it isn't completely irrational to think that the right to bear arms doesn't provide some modicum of protection against tyranny. I'm not convinced that it's an effective or substantial deterrent (I'd rather have checks and balances and separation of powers any day), but it may provide some deterrence.
6.3.2009 3:11pm
Guy:
I meant doesn't apply to states, not only applies to states, of course.
6.3.2009 3:20pm
Guy:
and does provide, not doesn't provide... apparently my fingers are trying to get me to switch sides. :)
6.3.2009 3:22pm
pintler:

(I'd rather have checks and balances and separation of powers any day)


Indeed, that's one of the reasons I'm an ACLU member. I'd much rather avoid muggings by not going to bad parts of town, and grizzly attacks by keeping a clean camp, but ... 'belt and suspenders' :-)
6.3.2009 3:35pm
Guy:
I realize now I probably came off looking pretty anti-gun, but for the record I'm not. I think a reasonable degree of gun control (registrations, waiting periods, etc.) are fine, and see no compelling reason why the Second Amendment should be incorporated, but also understand that reasonable arguments exist that it should be. I just tend to lose my cool when people either suggest that to hold it isn't incorporated is bad law (as CNSNews seemed to want to suggest) or sometimes when I hear that the Second Amendment is the most important guarantee in the bill of rights (More important than the First Amendment? Really?). I actually enjoy using guns for target practice, though I don't own one right now, I live in Berkeley and would be shunned.
6.3.2009 3:56pm
cboldt (mail):
-- If one is obiter dicta, then they both are. This isn't necessarily a problem for my position, though, since if neither is binding precedent, then they are only relevant for their persuasive authority. The rationale that the Second Amendment [doesn't] appl[y] to States is clear ... --
.
If both are dicta, and both exist solely because Presser argued that the 2nd amendment protects a right to conduct a parade (if the parade has guns), then the Circuits have a problem, because they are asserting that the LAW of Presser is that states are free to prohibit the people from keeping and bearing arms. The Circuits did not rely on the material as "persuasive," the claim (the half of dicta they cherry picked) is binding precedent of the United States Supreme Court.
.
Notice in Presser, even setting the 2nd aside, the states may NOT prohibit the keeping and bearing of arms. Incorporation is irrelevant under this rationale. Even if the 2nd amendment did not exist, says the United States Supreme Court, in Presser, the states may not prohibit keeping and bearing of arms.
.
Parades they can regulate to their hearts content - unless the parade is a gathering to petition the government for redress of grievances. No permit is required for that.
.
-- I just tend to lose my cool when people either suggest that to hold it isn't incorporated is bad law --
.
I assume you notice that I have not participated in that argument. My argument is that the Circuits have misread and misapplied Presser, and in a way that is not a matter of "reasonable people may disagree as to what the case stands for." In a case about whether or not the 2nd amendment is a bar to the states against passing parade permit statutes, the Circuits have cherry elevated one side of dicta to the status of unquestioned Constitutional law, while in the very same case, the United States Supreme Court DIRECTLY objects to the construction asserted by the Circuits.
.
But of course, no sense in losing cool over that. Just another day behind the bench, making good law for the dumb ass people.
6.3.2009 4:32pm
pintler:
Guy: you didn't come off as anti gun at all; I'm more used to 'anyone who owns a gun is an incipient mass murderer' :-)


More important than the First Amendment? Really?


That depends on the government in question. Ghandi and MLK both wisely chose non-violence. I don't think sit ins would have worked for the Jews in the Warsaw ghetto, though. But I agree that when people talk about 'the ballot box, the jury box, and the cartridge box' one should emphasize in that order.
6.3.2009 4:52pm
mariner:
Glen Alexander:
But it does tap into the average citizen's logical understanding of "constitutional law." If Heller recognized the right to keep and bear arms (or, more fundamentally, a right to self-defense) as a pre-existing natural right, then it follows that the right applies equally and everywhere. Selective incorporation is a pretty arcane concept for most Americans, and even after multiple explanations, many people have a hard time accepting it.

In much the same way, people have "explained" for years that a fetus is not a human life and deserves no protection. I understand that argument but I believe it's wrong, so I don't accept it.

In much the same way, I refuse to accept that the right to keep and bear arms can be legitimately infringed by even the Federal government (let alone state and local governments), regardless of decisions of my robed masters.

It's not a matter that is too complicated for us poor non-lawyers to understand. We just don't accept it.
6.3.2009 6:47pm
KFischler (mail):

DiverDan: the fact that Sotomayor is willing to just assume the conclusion that a RKBA is not "fundamental", without any analysis or authority, ought to be more than a little frightening."

As I noted earlier today link, Maloney didn't hang his hat on the Second Amendment. The bulk of his brief is devoted to his contention that at-home possession of nanchoku is among the "unenumerated rights" guaranteed by the Fourteenth and Ninth Amendments.

You will not see the words "fundamental right to keep arms" anywhere in Maloney's Second Circuit brief or in the transcript of his oral argument to the three judges. Documents which are readily found (as I did) on Maloney's web site, the first "hit" revealed by a Google search for Maloney v. Cuomo. The panel's disposition is wholly understandable when assessed -- as it should be -- in light of Maloney's strategic posture.

David Kopel's broadside against the Maloney panel thus seems either uninformed or intentionally misleading -- neither of which can be excused on the ground that he is not a lawyer, for Kopel is a seasoned attorney. I'll find it difficult to give much credence to his future analyses and opinions.
6.3.2009 7:21pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.