pageok
pageok
pageok
The Second Amendment in the Living Constitution

That's the topic of a recent article I wrote for America's 1st Freedom, one of the NRA magazines. I argue that if "living Constitution" means "shared and evolving beliefs about rights and powers" rather than "the whim of the particular judge," then the argument for a robust Second Amendment under living constitutionalism is very strong.

Melancton Smith:
I was blown away to hear you argue that in Chicago. That's taking Devil's Advocate too far!

Seriously, I agree with your line of reasoning, just don't like the premise.

Hope to see you in St. Louis this weekend!
9.22.2009 2:05pm
John T. (mail):
And clearly Kelo v. New London was wrongly decided based on that principle.

However, I think you have a false premise. People who favor a "living Constitution" don't mean "shared and evolving beliefs about rights and powers" of the American people as a whole. They only mean "shared and evolving beliefs about rights and powers" of the educated class, or the New York Times editorial board.
9.22.2009 2:21pm
Doug B. (mail) (www):
David, you write "whatever the Second Amendment might originally have meant, the historical record from 1800 onward shows that it was unambiguously understood as protecting a personal right to own guns for self-defense." I am curious if any significant part of that historical record involves completely excluding any and all non-violent persons convicted of a felony from exercising this right.

As you may know, I continue to be troubled by the failure of the NRA and others who vigorously support Second Amendment rights to advocate the possession of these rights of ALL "the people" and not just the people that it is politically safe to mention as having a right to keep and bear arms.


[DK: In the Founding period and the 19th century, there appears to be little, if any, precedent for disarmament of the type you mentioned. Nor was there any inkling that the congressional power to regulate commerce among the several states could be construed to give Congress the authority to ban simple intrastate possession. This latter point is addressed in an article I wrote with Glenn Reynolds, Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act. 30 Connecticut Law Review 59 (1997), http://ssrn.com/abstract=45301. The federal Gun Control Act of 1968 appears to be based on virtually no state precedent, in that it covered almost all felonies (except for a few economic crimes), all modern firearms(not just handguns), and was retroactive (banning possession by persons who might have been convicted of income tax evasion in 1949).]
9.22.2009 2:45pm
Kent Scheidegger (mail) (www):
But that is not what "living Constitution" means. It means interpreting the Constitution to require the result that is Politically Correct as determined by "elite" opinion. Hence, the "living Constitution" requires judges who subscribe to that view to "construe" the Second Amendment down to infinitesimal insignificance. All sophisticated thinkers know that gun rights are only for ignorant, redneck yahoos.
9.22.2009 2:52pm
Perseus (mail):
if "living Constitution" means "shared and evolving beliefs about rights and powers" rather than "the whim of the particular judge," then the argument for a robust Second Amendment under living constitutionalism is very strong.

The idea of a "living Constitution" was rooted in a Progressive view of history, so our "shared and evolving beliefs" about how to protect society are supposed to be moving away from 'retrograde' vigilantism toward government professionalism.
9.22.2009 2:53pm
AnthonyJ (mail):
Um... bear in mind that 'historical record' does not just mean 'record from that time period you happen to like the results for'. Recent history is history too, and there's certainly a credible history for the second amendment as a collective right, whatever you might think of the legitimacy of that argument.
9.22.2009 2:54pm
StevenG:
Kent-
You're almost there, try again. You forgot to mention a shibboleth. See John T.'s comment for an example of how to do it correctly.
9.22.2009 3:05pm
J. Aldridge:
I think it is a significant error by implying the federal govt has no power to confiscated guns because of the Second Amendment. What would be the argument against the federal govt deciding to confiscated automobiles, watches, books, etc.? Why does guns get singled out for preferred treatment?

Feds are just as powerless to confiscated guns with or without a 2A unless they are allowed to continue getting away with making a mockery of the commerce clause.
9.22.2009 3:06pm
John T. (mail):
Recent history is history too, and there's certainly a credible history for the second amendment as a collective right, whatever you might think of the legitimacy of that argument.


It's incredible to argue that the American people as a whole have not in recent times continued to view the Second Amendment as an individual right. Polls are uniform on that fact. Overwhelmingly so. Even 60-40 majorities of non gun owners believe so.

That doesn't stop people from believing in "reasonable restrictions," certainly, but the American people overwhelmingly reject the collective rights view in favor of the individual rights view in every poll.
9.22.2009 3:06pm
A. Zarkov (mail):
I confess I don't understand the "living constitution." The Constitution is similar to a contract. You might need to interpret a contract, but its meaning should not change with time.

Suppose at sometime in the future the US adopts the octal number system. Does the "thirty-five" in the constitution now mean 35 in base eight which means 3 x 8 + 5 x 8^0 = 29 in base ten. In other words, can we lop off 6 years off the required age for president? Seeming not because "thirty-five" spelled out means just that. But a future Ginsberg might argue that our "living constitution" means we can up date the meaning of 35.
9.22.2009 3:07pm
Kent Scheidegger (mail) (www):

Um... bear in mind that 'historical record' does not just mean 'record from that time period you happen to like the results for'.

Right. It means the time period in which the provision in question was adopted, as illuminated by prior periods.

Recent history is history too....

It is history, but it has no relevance to determining what limits the people placed on their government at an earlier time when they adopted the amendment in question. The process for changing the Constitution is set forth in Article V.
9.22.2009 3:08pm
ruuffles (mail) (www):

The Constitution is similar to a contract.

Show me a contract with such vague language as the Constitution and I'll show you a lawyer about to get sued for malpractice.
9.22.2009 3:09pm
John T. (mail):
If anything, the belief that it supports an individual right has grown stronger over time. So the argument that "recent history is history too" argues in favor of the individual right interpretation.

And that's Dave Kopel's point-- since the American people have this view, and since elections have been won on this issue, it's no surprise that the Supreme Court would bend to popular opinion.
9.22.2009 3:09pm
John T. (mail):
Show me a contract with such vague language as the Constitution and I'll show you a lawyer about to get sued for malpractice.


Any politician's campaign promises, including our President? I think a few jurisdictions in the world have tried to create electoral campaigning malpractice, but it's proven impossible to prosecute.
9.22.2009 3:10pm
Oren:

I confess I don't understand the "living constitution." The Constitution is similar to a contract. You might need to interpret a contract, but its meaning should not change with time.

But a contract can incorporate terms by reference, which change as the referent changes. For instance:


The lessee agrees to pay the lessor a monthly rent of 3oz of gold or cash equivalent in exchange for enjoyment of the property.

The lessee agrees to operate the property in compliance with all applicable laws and regulations.

The meaning of that contract does not change with time, but the cash equivalent of 3oz of gold (and the relevant regulations) do change. So the operation of the contract changes despite its meaning not having changed because it makes references.
9.22.2009 3:24pm
A. Zarkov (mail):
ruuffles:

"Show me a contract with such vague language as the Constitution and I'll show you a lawyer about to get sued for malpractice."

Precisely. If it's so vague, then its no constitution at all. It becomes merely a collection of sentiments. In which case, why not limit SCOTUS to a being a court of original jurisdiction?
9.22.2009 3:28pm
A. Zarkov (mail):
Oren:

You are conflating the operation of a contract with the meaning of a contract. In your example the meaning does not change. The text provides a clear algorithm for operating the contract. But suppose some judge decided that "gold" is old fashioned and we should use silver instead. That would change the meaning.
9.22.2009 3:33pm
ruuffles (mail) (www):

But suppose some judge decided that "gold" is old fashioned and we should use silver instead. That would change the meaning.

He wouldn't have to, if silver were a cash equivalent. (Beats me if it is).
9.22.2009 3:36pm
J. Aldridge:

"To keep and bear arms,"—not for self-defence, not for "military instruction," not for "special service in keeping guard;" but as members of a "well regulated " [State] militia. This was the very purpose of adopting this second amendment to the federal constitution—to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment,—the right of the people to bear arms, not for "making defence under special exigencies," which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State. --Francis Bird, Mass. 1853
9.22.2009 3:38pm
Bystander:
J. Aldridge -

Just to satisfy my curiosity: What type of law do you practice?
9.22.2009 4:28pm
J. Aldridge:
Glad you enjoyed the quote, Bystander.
9.22.2009 4:47pm
Ben P:

I confess I don't understand the "living constitution." The Constitution is similar to a contract. You might need to interpret a contract, but its meaning should not change with time.


Someone already hit the "show me a contract as ambiguous as the constitution point," so I'll raise a slightly different one.

When a contract is ambiguous Courts don't always just refer to textual interpretation tools to determine the meaning. One tool they can use is the course of performance and the course of dealing. Beyond that, sometimes even a party will be considered to have changed the terms of a contract when they repeatedly accept non-conforming goods. There's also the idea that there can be in some cases oral modifications to a written contract that's not complete.


Suppose you have a contract to buy deliveries of gasoline, the contract doesn't specify an octane rating. The contract is long term. During the beginning of the contract, the supplier sells you 85 octane gas, then at some point he calls and tells you that due to a change in his refiners, he won't have access to 85 octane gas anymore, but he'll sell you 87 octane gas for the same price. You accept and buy the 87 octane gas for another 6 months.

Then circumstances change and you want out, you tell him that the contract was for 85, not 87 and you're considering his inability to deliver 85 octane a breach and refusing to pay.

There's at least some chance he'd win that.


It's not a perfect analogy to the "living constitution" idea, but it's got some similarities. Sometimes parties leave a contract vague and fill in the details as they go along. The constitution is somewhat vague by design. Do people really think we ought to be amending the constitution with a list of definitions of common terms? If anything I could see such specificity only increasing the amount of potential infringements on liberty.
9.22.2009 5:25pm
einhverfr (mail) (www):
I have come to the conclusion that the Constitution is neither living nor dead, neither changing nor static, etc. I think the living constitution ideal exists within some of the original statements about the Constitution (that elected branches would be very much involved in interpreting it), but there has to be a more formal commitment then that.

At the same time, I agree that under a living Constitution framework the 2nd Amendment case is very strong. The downside is that it is easier to abridge and undermine that interest than it is under an originalist or constructionist approach.
9.22.2009 5:26pm
LarryA (mail) (www):
Recent history is history too, and there's certainly a credible history for the second amendment as a collective right, whatever you might think of the legitimacy of that argument.
Very recent history. Prior to the late 1970s there are no references to the "individual rights theory" because there wasn't one. There was only the Second Amendment right to keep and bear arms.

That's because the "collective rights" idea hadn't been invented.

I wear an analogue watch. (One that has hands.) The term "analogue watch" wasn't needed prior to the time digital watches were invented. People just had "a watch."
The idea of a "living Constitution" was rooted in a Progressive view of history, so our "shared and evolving beliefs" about how to protect society are supposed to be moving away from 'retrograde' vigilantism toward government professionalism.
Then the beliefs aren't doing what they are "supposed" to do. Which isn't surprising, since 80% of the U.S. Senate was elected by states with right-to-carry majorities.
Show me a contract with such vague language as the Constitution and I'll show you a lawyer about to get sued for malpractice.
"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" is only "vague" for those who are trying to figure out a way to infringe the right of the people to keep and bear arms.

Oh, and there's the marriage contract.
9.22.2009 7:29pm
Bystander:
Glad you enjoyed the quote, Bystander.

I suppose that is the only response I will get. Fortunately, it answers my question.
9.22.2009 7:38pm
ShelbyC:

I suppose that is the only response I will get. Fortunately, it answers my question.


Well, maybe he's being civil by not addressing your insulting implication :-).
9.22.2009 8:24pm
Brooks Lyman (mail):
And maybe J. Aldridge isn't a lawyer, though I see nothing shameful in that....which isn't to be construed as an endorsement of his/her views.
9.22.2009 10:13pm
Glen Alexander (mail):
"To keep and bear arms," — not for self-defence, not for "military instruction," not for "special service in keeping guard;" but as members of a "well regulated " [State] militia. This was the very purpose of adopting this second amendment to the federal constitution — to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment, — the right of the people to bear arms, not for "making defence under special exigencies," which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State. — Francis Bird, Mass. 1853
Well, what about this part?
9.23.2009 7:02am
Alec Dawson (mail) (www):
I read the article and I certainly appreciate your attitude towards the 2nd Amendment.

I think, however, the article could have been longer and had a more intellectual stroke to it. So many of the NRA articles are filled with rhetoric and not enough of an intellectual analysis. Those of us who are Life / Endowment / Benefactor members are a little tired of the "preaching to the choir". What is sorely lacking is educating the membership on the status of certain legal principles.

For example:
- A longer discussion on the history of the 14th amendment might be prudent. Explain the slaughterhouse cases.
- Is the dicta in Heller going to be a problem or backdoor to more (California style) gun control
- Why didn't Scalia / SCOTUS discuss the "shall not be infringed" portion of the amendment in Heller?
- What has been the court's position on other key consitutional cases (e.g. Kelo v. New London)
- Explain why SCOTUS gets a say in these things and is given so much rope (e.g. Marbury v. Madison)

Lastly, the pro-2nd Amendment membership needs to rally around the insurrectionist intent of the 2nd Amendment. The amendment does not fulfill its purpose unless the People can have military small arms. (e.g. machine guns, etc) If we can't even discuss it, the 2nd amendment has and is relegated to a personal protection statue.

I'd also like to see a discussion of what it would take to get SCOTUS to recognize the insurrectionist intent of the 2nd Amendment. Or is the amendment's purpose in life simply to be a smoke alarm to warn people when its time to leave?
9.23.2009 5:05pm
Joshua (mail):
Alec Dawson: Explain why SCOTUS gets a say in these things and is given so much rope (e.g. Marbury v. Madison)

Indeed, Marbury itself depends upon a sort of proto-LC mindset. After all the Constitution itself has nothing to say about SCOTUS having authority to nullify laws it deems in violation of the Constitution.

In a more general sense - and I'm amazed this point doesn't come up more often in discussions of this subject - if the Framers really intended for the Constitution to be interpreted in a certain way, it wouldn't have killed them to add one more article to the document saying so, would it? Now, that they didn't do this was probably just an oversight, rather than an implicit endorsement of loose interpretation, but it seems to me the lack of guidance in the document itself nonetheless left the door wide open for the latter. In other words, if our judicial system is indeed mangling the original intent of the Framers in drafting the Constitution, the Framers themselves are partly to blame for that, by not nipping it in the bud when they had the chance.
9.23.2009 10:56pm
Alec Dawson (mail) (www):
Joshua - I couldn't have said it better myself. You made the point I was trying to make exactly.

I suspect the reason Jefferson didn't challenge John C. Marshall's stance on Marburys is because he probably didn't think the Republic would last this long. At some point, the children and progeny of the framer's need and will take up the reigns to shape government the way it should be.

Problem today, however, is we have rolled back on the enlightened philosophies of the framer's. They are frequently discounted by today's populace because they are "old dead white guys" who owned slaves. Because of that, they fail to see the value in what the they wrote.

We could put together a constitutional amendment today and correct the Marbury trangression and shift the balance of power to the legislature. However, people like the idea of monarchies. It's so much easier to vote for benevolent dictator than to keep tabs on what the legislature is doing.

Thomas Jefferson said it best when he wrote:

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."
9.24.2009 3:33pm

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.