News Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[mynameinc]

IMO, the rights of the gun-owners have been infringed in two principal ways in recent years. 1) restrictions on so-called "assault weapons" that have certain cosmetic features such as pistol grips, bayonet lugs, etc, and 2) regional restrictions on the ownership/possession of hand-guns. In the case of 1) the laws are nonsensical in that they ignore the much more powerful and accurate semi-automatic weapons that are freely available. In the case of 2) local authorities have banned or restricted the possession of conventional arms simply because they are hand-guns. This does not eliminate hand-guns from their environs - it only ensures that honest law-abiding citizens cannot own them, even if they live in a very dangerous area where such weapons might be productively used for self-defense.

I agree with you. I've never understood why you can own a semi-auto shotgun and not a handgun (or a rifle with a few decorative features).

 

[Al68]

Though we are in substantial agreement on this issue, it is best to point out that "arms" have changed over the years. From the founding of this country, we have gone from single-shot flintlocks, to single shot percussion arms, to multiple-shot percussion arms, to multiple-shot cartridge arms, to double-action cartridge arms, to auto-loading cartridge arms. There is an additional layer of regulations restricting (but not barring) the possession of fully-automatic weapons, requiring the owner to pay a couple of hundred bucks to license each such weapon and requiring the FFL-holder (gun dealer) to pay a yearly occupational tax of $500 before he can sell or transfer such weapons.

IMO, the rights of the gun-owners have been infringed in two principal ways in recent years. 1) restrictions on so-called "assault weapons" that have certain cosmetic features such as pistol grips, bayonet lugs, etc, and 2) regional restrictions on the ownership/possession of hand-guns. In the case of 1) the laws are nonsensical in that they ignore the much more powerful and accurate semi-automatic weapons that are freely available. In the case of 2) local authorities have banned or restricted the possession of conventional arms simply because they are hand-guns. This does not eliminate hand-guns from their environs - it only ensures that honest law-abiding citizens cannot own them, even if they live in a very dangerous area where such weapons might be productively used for self-defense.

I agree with that and would add that SCOTUS in U.S. vs Miller in the 1930s specifically ruled that the types of "arms" protected were the types useful militarily, as evidenced by their use by soldiers in battle. They upheld the conviction of a man for possessing an unregistered sawed off shotgun on the basis that it was not a militarily useful weapon. Clearly full auto weapons would be protected from restriction based on the same logic.

 

[Gokul43201]

I was about to include some independent, explanatory clause examples in my last post but thought better of it as I know you are capable of imagining such:

As it may cause panics, it is illegal to yell "fire" in a crowded theater when there is no such danger.

As a free society depends on the ability of the people to criticize the government they construct, Congress shall make no law abridging the freedom of speech, or of the press.

Given the Church of England has aided in suppressing (or insert your own favourite Jeffersonian complaint here) the rights of free peoples, Congress shall make no law respecting an establishment of religion.

Drop the prefatory clause and in all cases the operative clause still holds. In that last one the prefatory clause is now an anachronism, as are 'militias', but was none the less on the mind of the founders at the time.

This is from way back, and I said I disagreed with the conclusions, but wouldn't address them in the previous thread, so here's a brief argument.

Take the first example:

As it may cause panics, it is illegal to yell "fire" in a crowded theater when there is no such danger.

Now, if in the future, the yelling of "fire" no longer causes a panic (let's say the word has come to become synonymous with "funny" - or whatever other reason one can conjure up), the rationale for the operative clause is gone. The law is now baseless.

I believe the same argument applies with the 2nd, that is to say that, if the prefatory clause were invalid, the amendment loses its reason for being, as written up by the framers.

Note: I do not insist that the prefatory clause is invalid, nor that there may not be other very good reasons besides the one provided by the framers. My objection is merely to arguments heard last year (such as the one by Heller) that the invalidity of the prefatory clause has no effect on the amendment.

 

[drankin]

I agree with that and would add that SCOTUS in U.S. vs Miller in the 1930s specifically ruled that the types of "arms" protected were the types useful militarily, as evidenced by their use by soldiers in battle. They upheld the conviction of a man for possessing an unregistered sawed off shotgun on the basis that it was not a militarily useful weapon. Clearly full auto weapons would be protected from restriction based on the same logic.

What they did not know was that a sawed off shotgun was, in fact, used as a military weapon on both sides of the Civil War. The evidence of such was not argued because neither Miller or his legal counsel appeared at the SCOTUS. If they had appeared, that decision may have been different on this fact alone. Just a lil historical tidbit.

 

[CRGreathouse]

Interesting, Gokul. I think I disagree. I'll take

As a free society depends on the ability of the people to criticize the government they construct, Congress shall make no law abridging the freedom of speech, or of the press.

as my example.

Suppose it was demonstrated that a free society did not depend on the ability of people to criticize the government they construct. For example:

• The Machines from Asimov's "The Evitable Conflict" run the world, rather than human leaders.
• Two mutalistic societies form, each criticizing the government of the other but not their own.

etc. (One need not live in such a society -- it need only be possible.) If *any* such society is found to be possible, then under your interpretation the amendment would have no force. But I think this is counter to the intent.

Your thoughts?

 

[Cyrus]

I was listening to Kegans senate confirmation hearings today and Sen. Sessions talked about the McDonald v. Chicago dissent by justice stevens talking about the standard in other developed nations. Scary that he would look to international law, or even mention it, on an American issue.

I'll try to find that quote.

 

[Cyrus]

This is from way back, and I said I disagreed with the conclusions, but wouldn't address them in the previous thread, so here's a brief argument.

Take the first example:

As it may cause panics, it is illegal to yell "fire" in a crowded theater when there is no such danger.

Now, if in the future, the yelling of "fire" no longer causes a panic (let's say the word has come to become synonymous with "funny" - or whatever other reason one can conjure up), the rationale for the operative clause is gone. The law is now baseless.

I believe the same argument applies with the 2nd, that is to say that, if the prefatory clause were invalid, the amendment loses its reason for being, as written up by the framers.

Note: I do not insist that the prefatory clause is invalid, nor that there may not be other very good reasons besides the one provided by the framers. My objection is merely to arguments heard last year (such as the one by Heller) that the invalidity of the prefatory clause has no effect on the amendment.

NO! This is an argument for a 'living' constitution. Not only do I disagree with it, so does Justice Scallia. He gives a good summary of why this notion is wrong here.

 

[russ_watters]

And that is the essence of the issue in the thread I started on judicial activism. The very idea (that the Constitution is "living") seems nonsensical and Scalia's explanation self-evident. It boggles my mind how people can believe otherwise.

I read a few articles and started to read the briefs on the recent ruling on the 2nd amendment and they seem waaay too thick and convoluted for what should be an obvious and straightforward issue (the syllabus is like 200 pages!): Either the Constitution is the "supreme law of the land" or it isn't. All of the history of the debate between federalism and states rights is completely irrelevant to the fact that the Constitution was written as a federalist document and that the supremacy of it was re-affirmed via the 14th amendment. The fact that people argued against the federalism in the Constitution 100-200 years ago and those ideas held traction doesn't change the intent of the framers of both the Constitution and the 14th Amendment.

I do believe that the 2nd Amendment is both poorly written and hopelessly out of date. Nevertheless, if any right to bear arms is to exist, it must apply equally at the state level as it does at the federal level. This issue was clearly written into the Constitution two centuries ago and re-affirmed a century and a half ago. I couldn't imagine a clearer case to come before the USSC and it dismays me that 4 justices voted against the Bill of Rights here.

 

[Office_Shredder]

Now, if in the future, the yelling of "fire" no longer causes a panic (let's say the word has come to become synonymous with "funny" - or whatever other reason one can conjure up), the rationale for the operative clause is gone. The law is now baseless.

As far as I know, there is nothing saying the constitution has to make sense. It would be up to Congress to repeal the amendment

 

[turbo]

And that is the essence of the issue in the thread I started on judicial activism. The very idea (that the Constitution is "living") seems nonsensical and Scalia's explanation self-evident. It boggles my mind how people can believe otherwise.

Laws must be interpreted (using the constitution for guidance) in light of societal changes. Is it OK to own slaves? Is a black man only 3/5 of a man? Is it OK to deprive women of the right to vote and participate in our governance? This is not a comprehensive list, just a quick review of some important changes that could not have been inferred from a strict reading of the constitution. Can we get some kind of confirmation that the constitution has to serve a changing world?

Right-wingers seem to dig their heels in and make such claims when rights are extended to individuals, yet remain silent when the conservative majority on SCOTUS equates political donations with free speech and extend personal rights to corporations. Neither of which is codified in the constitution, BTW, no matter how you want to twist the language.

 

[Office_Shredder]

Is it OK to own slaves?

This was changed in the constitution

Is a black man only 3/5 of a man?

Changed in the constitution

Is it OK to deprive women of the right to vote and participate in our governance?

Changed in the constitution


What we have here is a list of things that provide evidence that the constitution is living enough to correct itself by the standard procedures, and apparently does not need judicial modification

 

[turbo]

What we have here is a list of things that provide evidence that the constitution is living enough to correct itself by the standard procedures, and apparently does not need judicial modification

Yes, amendments are proof that the constitution must be modified in order to fit the changing needs of our society. The notion that our laws must be interpreted against a monolithic set of rules (the constitution) is ridiculous on the face of it. History disproves that.

 

[Cyrus]

Laws must be interpreted (using the constitution for guidance) in light of societal changes.

No! Go watch the video of the Justice I provided.

Is it OK to own slaves?

Irrelevant.

Is a black man only 3/5 of a man?

Again, Irrelevant. The Constitution already addressed this problem via 13th-15th amendments. Not 'open loosey-goosey interpretation.'

Is it OK to deprive women of the right to vote and participate in our governance?

Ditto reply to above. See the 19th amendment.

This is not a comprehensive list, just a quick review of some important changes that could not have been inferred from a strict reading of the constitution. Can we get some kind of confirmation that the constitution has to serve a changing world?

Which is why SCTOUS addressed it. The confirmation is amendment.

Right-wingers seem to dig their heels in and make such claims when rights are extended to individuals, yet remain silent when the conservative majority on SCOTUS equates political donations with free speech and extend personal rights to corporations. Neither of which is codified in the constitution, BTW, no matter how you want to twist the language.

Irrelevant to the OP. You were wrong on every account here of a 'live' constitution. Tisk-tisk.

 

[Cyrus]

Yes, amendments are proof that the constitution must be modified in order to fit the changing needs of our society. The notion that our laws must be interpreted against a monolithic set of rules (the constitution) is ridiculous on the face of it. History disproves that.

Clearly, history doesn't. The constitution is what it is. It gets changed by amendment. The end, not judicial policymaking. The fundamental responsibility of the courts is to uphold the law.

 

[russ_watters]

Yes, amendments are proof that the constitution must be modified in order to fit the changing needs of our society. The notion that our laws must be interpreted against a monolithic set of rules (the constitution) is ridiculous on the face of it.

Wait - am I misreading or are you saying that laws must not be interpreted against the constitution but rather against the changing needs of society? And doesn't that contradict with the first sentence, which demonstrates that it is the Constitution itself that must change to fit the changing needs of society, not its interpretation? At the very least, it (and your exmples) demonstrate that the idea that fixing the flaws in the Constitution works - that we don't have to just ignore the parts we don't like.

 

[turbo]

Clearly, history doesn't. The constitution is what it is. It gets changed by amendment. The end, not judicial policymaking. The fundamental responsibility of the courts is to uphold the law.

Courts are supposed to interpret law in terms of present situation. In the cases when there laws are shown to be deficient, the court should point out the deficiency, and then the proper course is legislation to amend, and then orderly ratification, state-by-state. Have you not been paying attention?

 

[Cyrus]

Courts are supposed to interpret law in terms of present situation. In the cases when there laws are shown to be deficient, the court should point out the deficiency, and then the proper course is legislation to amend, and then orderly ratification, state-by-state. Have you not been paying attention?

I've been paying attention, you clearly have not - with your litany of poor examples that are clearly and easily disproved by cracking open a constitution and reading it. Tisk-tisk-tisk.

Again, see the Scalia video. Nice job trying to backpedal.

 

[turbo]

I've been paying attention, you clearly have not - with your litany of poor examples that are clearly and easily disproved by cracking open a constitution and reading it. Tisk-tisk-tisk.

Again, see the Scalia video. Nice job trying to backpedal.

Perhaps you can explain to us poor idiots why the amendments were unnecessary, and why the amendment process (legislation and ratification) is flawed and un-American. Then, you can explain why the SCOTUS does not have to provide the motivating force for writing amendments in the first place, by striking down judgments that do not conform to settled law. This whole exchange is beyond ridiculous.

 

[BobG]

The majority opinion is the only one that particularly matters.

And therein lies the problem with this decision. There is no majority opinion.

At least between two of the opinions combined, there was enough agreement to strike down this particular gun control law. One may even reasonably predict that if another similar case is heard by this particular court, that gun control law would also be struck down.

There is no precedent set, however, meaning future rulings could change just because one justice suffered an untimely stroke.

 

[Cyrus]

Perhaps you can explain to us poor idiots why the amendments were unnecessary, and why the amendment process (legislation and ratification) is flawed and un-American. Then, you can explain why the SCOTUS does not have to provide the motivating force for writing amendments in the first place, by striking down judgments that do not conform to settled law. This whole exchange is beyond ridiculous.

I never said the amendments were unnecessary. Where on Earth did you get that impression? You didn't read a damn word I wrote...I never said any of the nonsense you just posted - anywhere - at any time.

 

[BobG]

Perhaps you can explain to us poor idiots why the amendments were unnecessary, and why the amendment process (legislation and ratification) is flawed and un-American. Then, you can explain why the SCOTUS does not have to provide the motivating force for writing amendments in the first place, by striking down judgments that do not conform to settled law. This whole exchange is beyond ridiculous.

The primary method of motivation the SCOTUS uses is to strike down a law the people like or to uphold a law the people dislike. That's what motivates people to change the Constitution.

Ever look at how many proposals for Constitutional Amendments there are that try to define the beginning of human life? Obviously there is lack of consensus on when human life begins, so none of these proposals ever get off the ground, let alone reach the states for ratification. At most, initiating the proposal gives a Congressman something to brag about to his constituents.

But I guess I'm not quite sure what your point is since winning a victory in the SCOTUS would result in not trying to amend the Constitution.

 

[mheslep]

This is from way back, and I said I disagreed with the conclusions, but wouldn't address them in the previous thread, so here's a brief argument.

Take the first example:

As it may cause panics, it is illegal to yell "fire" in a crowded theater when there is no such danger.

Now, if in the future, the yelling of "fire" no longer causes a panic (let's say the word has come to become synonymous with "funny" - or whatever other reason one can conjure up), the rationale for the operative clause is gone. The law is now baseless.

I believe the same argument applies with the 2nd, that is to say that, if the prefatory clause were invalid, the amendment loses its reason for being, as written up by the framers.

Note: I do not insist that the prefatory clause is invalid, nor that there may not be other very good reasons besides the one provided by the framers.

I take your point and agree with what I think you have shown above: that one must look at the meaning and context of the two clauses to determine the impact of the prefatory on the operative. In the first, if the prefatory happened to become the odd anachronism ('funny') I agree the operative might become baseless. However, I believe in the third the fact that the US may no longer be at threat of being co-opted by Anglican clergy has little impact on invalidating the operative establishment of religion clause.

My objection is merely to arguments heard last year (such as the one by Heller) that the invalidity of the prefatory clause has no effect on the amendment.

If I read you correctly, I believe that your objection would be to a claim that all prefatory clauses have no effect. That would be, as you said, a grammatical overreach. Heller doesn't do that. Heller holds that in this case ("The Amendment’s ...") after consideration, just as in my third example above, the prefatory doesn't hinder the operative despite changing context.

 

[TheStatutoryApe]

And that is the essence of the issue in the thread I started on judicial activism. The very idea (that the Constitution is "living") seems nonsensical and Scalia's explanation self-evident. It boggles my mind how people can believe otherwise.

I read a few articles and started to read the briefs on the recent ruling on the 2nd amendment and they seem waaay too thick and convoluted for what should be an obvious and straightforward issue (the syllabus is like 200 pages!): Either the Constitution is the "supreme law of the land" or it isn't. All of the history of the debate between federalism and states rights is completely irrelevant to the fact that the Constitution was written as a federalist document and that the supremacy of it was re-affirmed via the 14th amendment. The fact that people argued against the federalism in the Constitution 100-200 years ago and those ideas held traction doesn't change the intent of the framers of both the Constitution and the 14th Amendment.

I do believe that the 2nd Amendment is both poorly written and hopelessly out of date. Nevertheless, if any right to bear arms is to exist, it must apply equally at the state level as it does at the federal level. This issue was clearly written into the Constitution two centuries ago and re-affirmed a century and a half ago. I couldn't imagine a clearer case to come before the USSC and it dismays me that 4 justices voted against the Bill of Rights here.

I suppose that about 200 years of precedent set by educated men and women, each with several years of experience on the bench studying and interpreting the constitution, is really impotent standing next to personal opinions. Please.. this is really beyond arrogant.

No! Go watch the video of the Justice I provided.

If you read up on constitutional interpretation you will find, even in textbooks on the subject, that there are multiple approaches to interpretation and criticism of the deficiencies of each. When you are listening to rhetorical waxing by a conservative judge calling those approaches he does not agree with "activist" you are not exactly getting a full picture. That particular bit of the interview was even obviously cut from a longer interview and hardly anything of substance was stated in that short clip.

And therein lies the problem with this decision. There is no majority opinion.

Apparently if you look at many decisions over the last 50 years or so you will find that multiple opinions has become the norm. It happens in many cases. Thomas agreed with the majority and only disagreed on exactly the manner in which the decision was reached. This is mostly irrelevant to the outcome and precedent, the precedent will be set by the majority opinion, and yes it is still the majority opinion despite Thomas separate concurring opinion. There are even such things as a "plurality opinion" which is probably where things really get sticky as it means that none of the judges agreed on the manner of the decision, only the outcome.

 

[Cyrus]

If you read up on constitutional interpretation you will find, even in textbooks on the subject, that there are multiple approaches to interpretation and criticism of the deficiencies of each. When you are listening to rhetorical waxing by a conservative judge calling those approaches he does not agree with "activist" you are not exactly getting a full picture. That particular bit of the interview was even obviously cut from a longer interview and hardly anything of substance was stated in that short clip.

There is a link on the bottom of that youtube video (if you click the video and go directly to youtube) that has the full 37 minute interview. He does a very good job in the full interview detailing this.

 

[mheslep]

First

Is it OK to own slaves? Is a black man only 3/5 of a man?

This was changed in the constitution

The Constitution already addressed this problem via 13th-15th amendments. Not 'open loosey-goosey interpretation.'

Second

Is it OK to deprive women of the right to vote and participate in our governance?

Changed in the constitution

Ditto reply to above. See the 19th amendment.

So many seem to be aware that the constitution was in fact changed to address these flaws; that the constitution doesn't have to be willy nilly interpreted beyond all recognition to suit some judge's crusade to change society. I collected all the above because Judge Ginsburg seems to be equally unaware of the the 13th-15th and 19th amendments when she made almost identically baffling statements in an interview where she responded to a question about Scalia's frequent denouncement of the 'living constitution' doctrine. (Looking for it ...) What the hell?

 

[Gokul43201]

If I read you correctly, I believe that your objection would be to a claim that all prefatory clauses have no effect. That would be, as you said, a grammatical overreach.

I am not going that far yet (but only because I've been rushing through this), and where I was wrong (or at least premature) was therefore in labeling it a grammatical overreach. I am talking about this specific amendment, where (and I believe the relevant example is #1 above - again, because I haven't looked at the others carefully yet), the prefatory clause is essential in providing the rationale for the operative, and lacking that rationale, the amendment is without basis (or ought to be in the reading of a literalist).

 

[TheStatutoryApe]

There is a link on the bottom of that youtube video (if you click the video and go directly to youtube) that has the full 37 minute interview. He does a very good job in the full interview detailing this.

I returned the more general discussion of SCOTUS decision making here...
https://www.physicsforums.com/showthread.php?t=410628&page=4

In regard to the topic here I would point out that Scalia says he believes that the incorporation process was a mistake. By this one would assume that to him it is not so obvious an idea that an individual citizens right to bear arms should not be infringed by the state. It makes me all the more interested to figure out how he came to his decision.

 

[russ_watters]

I suppose that about 200 years of precedent set by educated men and women, each with several years of experience on the bench studying and interpreting the constitution, is really impotent standing next to personal opinions. Please.. this is really beyond arrogant.

As I said, the issues immediately before us were, for the most part, settled 150+ years ago. For me to suggest (for example) that educated men in the late 1700s or even in the mid-1800s were nevertheless racist and wrong is not in the least bit arrogant.

I used to argue in here that a USSC decision on something is sacrosanct because they are the body charged with making such decisions (the law is what they say it is). In the past few months/years, I've changed that opinion because I've seen too many cases where our supposedly apolitical judges are, in reality, making decisions that are highly politicized.

 

[Cyrus]

It makes me all the more interested to figure out how he came to his decision.

It's in the court ruling.

 

[russ_watters]

So many seem to be aware that the constitution was in fact changed to address these flaws; that the constitution doesn't have to be willy nilly interpreted beyond all recognition to suit some judge's crusade to change society. I collected all the above because Judge Ginsburg seems to be equally unaware of the the 13th-15th and 19th amendments when she made almost identically baffling statements in an interview where she responded to a question about Scalia's frequent denouncement of the 'living constitution' doctrine. (Looking for it ...) What the hell?

I'd be very interested in seeing that interview - and it is baffling to me as well.