As the uncle travelling Matt of LP, I bring you strange news from the Outer Space that is the USA.
For those who hadn’t heard, the US Supreme Court has issued its first opinion since the 1930s which directly addresses the Second Amendment and outlines the Court’s approach to the right to bear arms.
In a 5-4 decision, they have come down on the “individual rights” view of the Second Amendment, asserting that this construction…
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.
…refers to an individual right to bear arms that existed prior to the framing of the Amendment, and which pre-existing right the framers intended to codify and co-opt into the service of a well-regulated militia for the defence of the State against attempted tyranny, foreign or domestic.
The opposing school of thought is that “the People” referred to in the clause is a collective phrase, thus conferring the right to bear arms only in a general or collective sense, and only for the specific purpose of forming a militia. So, for example, home defence, hunting or target shooting are not within the purview of the right to bear arms.
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The historical argument for the decision is that the right to bear arms came first and that the framers, with fresh memories of attempts by the British to disarm them, intended to invoke a new, modern, raison d’etre for that right. That their thinking was influenced by their neo-classical world-view that venerated for example ancient Rome, in which citizens could carry weapons but slaves could not. Or later feudal times when landed lords could carry weapons, but serfs could not. Thus the link between arms and freedom was indissoluable in their minds.
The linguistic argument for the decision is that the phrase ‘the right of the People to bear arms…’ is the operative clause of the Amendment, to which the prefatory clause ‘A well regulated militia…’ is subordinated. As an ESL teacher and grammarian, I’m inclined to agree with that linguistic argument, as much as I dislike the conclusion it leads to. While intuitively in modern English we’re taught to write the “key idea” first in a paragraph, this was not so much the case in many earlier forms of writing.
Another important corollary is that “the People” referred to in other Constitutional amendments has been always been interpreted by the Court an conferring an individual right, so it would be contrary not to apply the same meaning to the Second Amendment. Why would the framers have used the same phrase as other ‘individualist’ clauses if they didn’t intend it to apply individually in this Amendment? While modernist political writing has tended to refer to ‘the People’ in a collective sense, this was certainly not as common a usage back in the 1780s.
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The decision is being touted as a victory for Justice Scalia’s “originalist” approach to constitutional questions. That’s akin to our High Court’s “strict constructionists” - ie. the aim being to deduce what the framers of the amendments intended by their words.
Some discussion-starters:
1. Why do you suppose Justice Scalia left out of today’s opinion his famous one-liner from the recent habeas corpus dissenting opinion - that this decision ‘will almost certainly cause more Americans to be killed’?
2. Accepting the decision, should gun-control advocates’ strategic focus now concentrate on getting up control laws that work within the Court’s individualist ruling - or should they go for the grand prize of overturning the Second Amendment?
3. What is it with the monotheistic text-based cultures, where grave decisions depend on Torah-like attempts to deduce the meaning of long-ago texts where the authors are now dust? The “originalist” approach reminds me of ultra-orthodox rabbis, fundamentalist priests or radical imams scrutinising their ancient texts and pronouncing their tenets for a world that the original writers could not possibly have imagined.
4. How has Australia managed to (more or less) avoid tyranny without a well-regulated militia or a right of the People to bear arms?
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And before I go, I’ll leave you with some cheery NRA slogans that affirm the thinking and the necessary link that exists between arms and freedom in their minds:
The First Amendment would not survive without the Second Amendment.
An an unarmed person is a subject, an armed person is a citizen.
I caught the PBS Newshour segment on this decision. The commenter noted that Scalia, writing for the majority, opined that some types of armament lay beyond the scope of the Second Amendment. Thus, it was suggested, there was no right to bear automatic weapons.
I’d like to know the basis upon which such a line may be drawn. For if you take this line of argument to its originalist basis, then it could be argued that the only types of weapon legitimised by the Second Amendment were those that existed at the time of the penning of the Second Amendment — blunderbusses, arquebusses, wheel-locks, flintlocks, petards and the like.
A conspiracist may well detect in Scalia’s originalism a deep-laid plot to legitimise confiscation of Colts, Smith and Wessons, Lugers, Barettas, Mannlicher Carcanos, and the like.
And this:
An an unarmed person is a subject, an armed person is a citizen.
A person in range of an armed person is a target.
True Katz, but then that would mean the only type of speech protected by the First Amendment is the town crier, and pamphlets written with quill pens…and as for blogs…
Personally, I think the Court has interpreted the Amendment correctly. Time to Amend the Amendment? After all, that’s the whole point of Amendments!
Well if it’s supposed to stop tyranny it’s not working very well; nobody over there has blown away Bush yet
But seriously, have never understood the American thing about having the right to blow each other away, and that right being part of being “free”. In some online discussions I’ve been lectured that Oz is in fact not as free as America because of our gun laws.
Wouldn’t a more elegant solution be passage of a constitutional amendment that automates the impeachment and removal of any justice who uses originalist arguments?
I would have thought originalism is the only approach compatible with democracy, rather than, say, the tyranny of unelected lawyers…
BBB
Smokey @3: I think it’s become one of those ideas that is given credence simply because it’s been around for so long. It’s also more of a symbolic right, as you alluded to. Owning a gun won’t actually make a person free, but to an American, it’s proof that we are free. As the Bush administration has shown, you can take away every one of my rights, as long as you let me keep my gun.
Mercurius, in reference to item number two, I think gun control advocates (including the DC govt) are looking at a more small-scale (or just sneaky and underhand, depending on your POV) strategy. There is only one registered gun dealer in DC, and he happens to be a gun-control advocate (Josh Sugarmann, head of the Violence Police Centre). Unless a person owns another home in a state outside DC that he can use to register a gun, DC residents aren’t exactly out purchasing guns in droves. The SCOTUS only ruled that DC residents have the right to own a gun, they made no provision for the practicalities of actually purchasing a gun. The DC govt is likely to enact multiple restrictions on gun ownership, which will probably include a written test. Given the state of the public schools in DC, a written test would rule out mostly everyone anyway. Add to that the immense bureaucracy of the DC govt, and your average DC resident is unlikely to possess a legally obtained firearm within the next few presidential terms.
At an ACLU Conference earlier this month, Tony Romero (ExecDir of the ACLU) explained (in response to a question about the ACLU’s position on the 2nd Amendment vs its position of the 14th Amendment) that the ACLU accepted a very narrow definition of the right to bear arms, but was willing to stretch the definition of the 14th Amendment wherever applicable. I think that’s really where the key to this lies. Americans would sooner elect Bernie Sanders as President before they would overturn the 2nd Amendment, but by limiting the definition of the 2nd amendment, and by making it as hard as possible for citizens to avail themselves of the rights offered by the 2nd amendment, it is effectively rendered impotent.
It’s not exactly fair or in the spirit of things, but that’s what you get when a country bases its legal decisions not on what is most logical and just, but what is written in some old outdated rulebook. A bit like the Bible, really, only with an American accent.
Mercurius rubs his hands with glee at the thought of altering the Second Amendment; but of course he wouldn’t dream of messing with, say, the Thirteenth, Fourteenth, or Fifteenth amendments. Why? No very good reason, other than Mercurius finds that some rights are congenial to his personal taste; other rights, not so much.
This of course is the very definition of tyranny. Why do Americans conserve their right to keep and bear arms? Well first of all, to defend themselves from people like Mercurius.
Q. “4. How has Australia managed to (more or less) avoid tyranny without a well-regulated militia or a right of the People to bear arms?”
A. Largely because of Americans, with their pesky arms.
The rest of the post is essentially prattle.
Uh oh.
Current restrictions on gun ownership in DC seem not to have done much to prevent locals blowing each other away.
That’s cute, but a non sequitur in this context, unless you think the Allies would have lost the Second World War without the 2nd Amendment.
Of course, just try and rise up agin’ your government America, and it may become clearer that its merely an amendment allowing you to murder each other.
I, erm, waive my ‘rights’. Thanks.
Mugabe ahead in early counts.
Actually Steve, your chances of getting shot in DC are entirely based on which area you are in, i.e, it’s dependent on socio-economic factors, not gun laws. Gun control obviously won’t stop someone from being violent, but I can assure you that Anacostia would be a lot safer if every thug possessed knives rather than guns.
The problem with the DC gun ban was not that it existed, but that Maryland and Virginia did not also have the same legislation. Anacostia in DC is two Metro stops (a whole 3 minute subway ride) on the green line away from the Southern Ave stop in Maryland. As private interstate travel is not regulated (and is especially common in places like the DC metro area), very liberal gun legislation in one state negatively impacts tight gun control in a neighbouring state (or in this case, district). If guns are easily available in MD and VA, guns will be easily available in DC. The ideal solution is to make guns as difficult to obtain as is humanely possible on a uniform basis throughout the nation, rather than bit by bit, state by state.
Once everyone stops shooting the crap out of their neighbours, you can start attracting businesses, organisations, and a greater variety of resident to invest in the area (see, unlike the poor, the rich have a choice where they live, and they’re generally not big on choosing places like Anacostia), thereby creating social and economic regeneration which, unsurprisingly, makes life more pleasant for everyone.
Amazing how it all works, hey?
Nonsense. Since I’m not an American citizen and have no say either way, I wouldn’t dream of messing with any Amendment.
But messing with Amendments is all part of America’s grand legal tradition. Otherwise they’d still have Prohibition over here.
Amendments amend things and they themselves can be amended, or repealed. That’s just reality j_p_z, no need to, ahem, shoot the messenger.
The rest of your post is essentially prattle.
Brett: “That’s cute, but…”
You’re quite right of course, it’s far too cute, and neither entirely accurate nor in any sense a complete account. It was just such a short tart little formulation, one could scarcely resist. Cheerfully withdrawn. (Still, it’s not without a soupcon of truth, and I didn’t have the Second WW in mind, to be honest, but rather the system of global stability underwritten largely by the US Navy (and before it, the Royal Navy), the benefits of which are largely prophylactic and often not readily visible. Even that much is open to dispute of course… and where’s the link to the domestic issue? Well it’s cultural and philosophical, I’d argue. And I’m not talking about an actual love affair with the physical fact of guns. All the same, this here question is one gun I’m not prepared to stick to for that much longer…)
Mercurius — ouch, nice backhand return. Now that the snark has been done, there’s actually some interesting philosophical approaches to all this, viz., more to discuss. But I don’t want to hog the thread, I’ll come back later. In the meantime I’d suggest this much…
“But messing with Amendments is all part of America’s grand legal tradition. Otherwise they’d still have Prohibition over here.
Amendments amend things and they themselves can be amended, or repealed…”
All true, but playing around with the Bill of Rights itself is, I’d submit, a far more dangerous game than monkeying with stuff like term limits for presidents or the sale of alcohol. (Your parsing of the constitutional sentence is of interest; I read it in a somewhat complex and idiosyncratic fashion myself, but I’m not a constitutional scholar and don’t know if standard scholarship would back me up, perhaps not.)
It seems to me that the assumption underlying much standard criticism of the 2nd Amendment, viz., that a key provision of the Bill of Rights is just a vulgar archaic inconvenient piece of twaddle that’s blocking our good intentions as well-meaning gun-banners, is something a feller might want to pause, step back, and take a closer look at. …Will someone please think of the children?
More later, after other folks have had their say…
Don’t worry. Here in DC we have three whole weeks to work on some Scalia-proof gun laws.
I’ve started drafting some:
http://notionscapital.wordpress.com/2008/06/27/dc-gun-license/
But the Bill of Rights is merely an aggregation of 10 amendments no different in legal status from the other 13 or so.
The amendment game is dangerous only if it is played recklessly.
Organised crime on a massive scale was a direct result of the Prohibition Amendment. Nothing dangerous about that! Just ask Jack Ruby.
And in any case, pace Mercurius’ linguistic interpretation of the Second Amendment, Scalia’s interpretation of the Second Amendment constitutes a blatantly incorrect inversion of the operative phrase and subordinate clause of the Amendment. Thus Scalia has proven that effectively amendments can be made without recourse to the proper constitutional machinery of amendment.
The operative phrase: “A well regulated militia being necessary to the security of a free State” sets strict limits on what may not be infringed — that is, the right of individuals to join a “well regulated militia”. Eighteenth-century Americans knew well what this meant. A huge proportion of free, white men had been members of train-bands since the early 17th century. Train-bands were an English tradition whose origins extended beyond the time of Shakespeare (see Falstaff).
The Ku Klux Klan and the German American Bund were in their hey day “well regulated” in the sense of military discipline. Yet this amendment did not and does not guarantee the right of the KKK to appear under arms and to march and drill publicly under arms. “Well-regulated” meant in the 18th century train-bands under the orders of officers duly commissioned by the Executive. In the pre-revolutionary setting, these commissions were granted by provincial governors exercising royal authority. The Second Amendment merely changed the origins, but not the nature, of this executive authority.
Let’s look at the US Constitution in its own historical context. This very same Constitution denied voters the right to elect directly the President. Instead, their franchise was filtered through the Electoral College. What sort of polity denies an enfranchised individual the right to have his vote counted directly, yet gives him without condition the tool to overthrow the State by force of arms?
The answer is: the 18th century US was no such state. The US was established on the basis of a characteristically 18th-century hierarchical structure. The Electoral College was to prevent idiots from voting in scalliwags. And a “well-regulated militia” was to harness the energies of the uneducated to the orders of their social superiors, duly commissioned by the Executive.
http://www.home-backup-protection.com/buy/commercial.php
If they Americans did get rid of the 2nd Amendment, wouldn’t they have to disband the militia? And if they disbanded the militia, how would the RWDBs fight their wars without conscription? And if they introducerd conscription, wouldn’t it be Vietnam all over again?
btw, the 18C militias needed to bear arms not just to give the Brits a bloody nose, but to protect themselves from/ fight/ massacre the Native Americans. Which one of those three alternatives one chose depended upon which colony/state one lived in.
Moreover, as I understand it, the Founding Fathers wanted to distinguish between a voluntary militia and a standing army. 18c types tended to think standing armies were a potential threat to individual freedoms and a symbol of tyranny.(Notwithstanding the existence of the Continental Army during the War of Independence.)In the immediate post war period when officer veterans established the Sons of Cincinnati [?](I think that moniker’s right- can’t be bothered getting up from the computer to check my books)they were eaccused of wanting to create an herditary aristocratic military elite that was a threat to democratic freedoms.They still wenjt5 ahe4ad and formed the Society, though.
As to why we don’t have the right to bear arms in Oz, think Irish Convicts at Vinegar Hill, bushrangers, etc. The authorities were well aware early on what some of the people would do if you gave ‘em guns. Especially those Ned Kelly types.
Furthermore, we had guns at the Rureka Stockasdee and look what happened. The night before, even they we knew the troopers were coming we had an almighty piss up, more than half the miners scarpered, and in the morning most of those who were left were either too drunk or hungover to fight back at the troopers, who outnumbered them anyway. It lasted tweenty monutes, I think. Even when we wantee to have a rewvolution we couldn’t organiswe it properly.
btw, at least one of the miners was a Yank.
That thing is a beauty Darryl!
My dad had something similiar to hold the “big stick”, so he could easily mete out disciplne to us kids without the tediousness of having to rise from the bed.
I have met many thoroughly good, honourable and delightful people from the US. However, any reading of US history, past and present, appears nothing other than spiteful thuggery and violence - meted out to whoever gets in the way. Consequently, it doesn’t surprise me at all that a significant part of their national psyche is bound up with becoming the subject of other people’s violence. It appears to be formost in the minds of so many people in the US. With such a siege mentality it is only a short step to forever feeling the need to be able to “Do others, before they do you”. Otherwise why would you always need to have a gun in your pocket?
@23 “Otherwise why would you always need to have a gun in your pocket?”
That’s not a gun, they’re just pleased to see you, sweetie. :^)
But seriously:
“any reading of US history, past and present, appears nothing other than spiteful thuggery and violence”
is that so different to any other country on Earth? I can’t see that the US is exceptional on that count. That being sad, there is definitely something exceptional about the US and firearms. Whether you like or loathe Michael Moore, “Bowling for Colombine” does a very good job of *describing* some of the exceptional aspects of firearms and American culture. It’s something very deep and mysterious.
d
Heather, sorry I’m doing a bit of a head spin here at this comment:
“The SCOTUS only ruled that DC residents have the right to own a gun, they made no provision for the practicalities of actually purchasing a gun.”
What exactly has SCOTUS ruled on if not the practicalities of actually purchasing a gun? Didn’t DC attempt to place restrictions on gun purchases, and get smacked down so that neither they nor any other state can restrict purchases?
The fact that neighbouring states have not (at this time) tried to enact similar restrictions is entirely another question isn’t it?
SCOTUS have said that *no* state can follow DC’s example, haven’t they?
It seems to me that SCOTUS have quite clearly said no state can enact laws restricting gun purchase, so that the whole question of state borders (or how small DC is) is completely moot.
ML @ 23,
With respect, that’s a pretty narrow reading of American history.Just two examples. At the same time as the War of Independence was going on - and it was a bloody, merciless, cruel civil war in which at least one American historian sees clear paralells with the darkest days of the Terror during the French Revolution and with the excesses of the 1917 Bolshevik Revolution - America produced its first significant poet, a black slave named Phyllis Wheately.And whatever criticisms one might have of the Second American Congress, which was disastrously inept for much of the war, it did produce the Declaration of Independence, which, regardless of its failure to deal, in its final form, with the issue of slavery, and its understandably vicious caricature of George 111, is still arguably, the seminal document for all modern democracies, along with the Bill of Rights, despite the 2nd. Amendment.
btw, we adopted our concept of the Senate as a house of review from the Americans.
There is some complexity to this issue, which I’ve tried to tease out here, especially in light of other American constitutional protections that the 2nd Amendment may underwrite.
wait, Heather — why use Anacostia as an example? It’s really not as bad as you seem to think…
4. How has Australia managed to (more or less) avoid tyranny without a well-regulated militia or a right of the People to bear arms?
This is off the top of my head, but — Americans are basically individualists. Australians aren’t (though I think we moved more in that direction under the Rodent. American culture (last time I saw some stats) is also a lot more violent than ours — much higher rates of violent crime in all categories. I’ve met a few American gun nuts online. Their main motivators are an excessive fear of intruders and a belief that they are on their own, or ought to be able to handle it themselves. The statistical likelihood of intrusion — let alone real gun death stats — cuts no ice with them. They are very frightened people.
w/r/t the historical background and context of the Second, Steve Sailer has an interesting and useful post over at isteve, in which he poses the historical question in an unexpected but perfectly sensible way. Some insightful comments in the thread, too, along with the expected cranky ones. Personally I think historical context is merely a helpful tool for shedding light on a question, and should never (or very rarely) be our guiding star for deciding these sorts of things. Madison and his friends knew perfectly well that they were writing for an unknowable future.
The Bill of Rights is rather unfortunately misnamed; the well-known but nearly always-forgotten (or wilfully elided) fact is that strictly speaking, the Constitution does not magnanimously “grant” rights to those persons living under it; the rights are assumed to be pre-existing and part of the package of being a human. It simply enumerates things that the federal government can and cannot (and in the case of the Bill of Rights esp., must not) do. It’s a pity Noel Coward wasn’t in the room with the Framers; he might have cheekily suggested that, rather than calling it something grave like The Constitution, “Design for Living” might be more appropriate.
Frankly I’m astonished (and worried) that the Court’s decision was split at all, let alone closely split. It should have been unanimous on the side of the individual and pre-existing right. I was amazed to find out that this was even still a debatable issue, this late in the game. I should point out that I’m personally not a gun nut, nor even a gun owner, the thing doesn’t directly affect me; this question broadly refers to fundamental senses of liberty and right government (and no, I’m not a libertarian either, as I hope is obvious by now).
Katz’s reading of the Second seems plausible at first, but in fact cannot be accurate; it derails upon contact with both practical lived reality, and also the English language. First of all, it is plain that, no matter what the first clause of the sentence seems to imply, the rest of the sentence is plain as day: the right of the people shall not be infringed. The opening clause simply cannot govern in entirety such a sweeping statement. The fact that “the people” here must be individuals rather than a collective is made plain by analogy to the Fourth: “the right of the people to be secure in their persons, houses, papers and effects etc.” cannot possibly be taken to mean a collective sense of security. Are the people to collectively place their papers and effects in a group safe-deposit box?
The same thing holds even if we grant the “militia” phrase more weight. The fact that the people have the right to form a militia implies that they need to be armed to do so. You could argue that this is then limited to having, say, a town arsenal, but who holds the keys? The government? Each one of the… People? And if access to the arsenal is restricted, then the right has been… infringed. The strictly collective idea of a right of the people to *keep* and bear arms makes little sense, unless there had been an explicit consensus on that point and in detail; otherwise, one’s rights under the Second are satisfied merely by virtue of the existence of the National Guard.
Guns are just tools, and in the Framers’ view they are just part of the tool kit that is “necessary to the security of a free state.” (I think that phrase is one of the two chewy centers of the Second, but that’s another argument.) It is assumed that they will be handled properly and responsibly; there are after all, explicit laws against misusing such tools for robbery and murder, just as there are laws against deliberately crashing airplanes into buildings. We don’t ban airplanes because someone *might* do that; we simply have reasonable regulation for the sake of public safety. One of the problems with many gun-control advocates is that they argue in such bad faith. There are after all such things as reasonable regulations, that need not infringe upon Liberty as such.
Don’t know if this thread is running out of steam or not (and sorry for the length). If it revives, there’s some quasi-jurisprudential questions I’d be interested to hear skepticlawyer’s take on.
Interesting argument but it does fatal violence to the connection between language and meaning.
Let me substitute some words which have had consistent meaning in English since the end of the 18th century.
Consider the following:
Structurally, this sentence is identical to the Second Amendment. Yet, it would be a very perverse reading of it to assert that the right to kill has been granted beyond the narrow circumstances of self-defence.
That is how we read this sentence in the early 21st century. And this is how 18th-century Americans read this sentence.
The word keep did not in the 18th century mean the same as own. For example, in the early nineteenth century, the cricketing function of wicket-keeping was first identified and named. This individual kept the wicket. This didn’t mean that he owned the wicket or that he had it in his physical possession. Rather, he had the responsibility of superintending the wicket in the interests of his team — a collectivity. One may keep something without owning it, and one may keep something without having it in one’s physical possession.
Your reference to the language of the Fourth Amendment strengthens my argument. The rights of individuals (and I agree with your argument on this point) to be free of “unreasonable searches and seizures”. Thus, by implication, the right to privacy is not absolute and may be “infringed” after due process, and in the common — collective — good. It is easy to see how that doctrine of collective good is embedded as firmly in the Second Amendment as you may now see it is embedded in the Fourth Amendment.
Pretty sure that we only adopted the name of the Upper House, as we couldn’t very well use the term House of Lords in our version of the Westminster System of Parliament.
The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled has been a distinct part of the British Parliamentary landscape since the reign of Edward III.
P.S. of course, both the Americans and the Australians were looking back through rose tinted glasses at the Roman Senate when choosing the name for their House of Review.
tigtog: it’s true that we couldn’t very well have called our upper house the House of Lords (unless we’d gone for a bunyip aristocracy), but clearly the composition of the Senate was in practice much more inspired by the US Senate than the UK House of Lords. Otherwise we would have ended up with something like Canada’s weird Senate: senators appointed permanently (until age 75, anyway), in practice by the PM on partisan lines, and with greatly unequal representation between provinces (though not proportionate to population either). http://en.wikipedia.org/wiki/Canadian_Senate
J_P_Z: no worries, I don’t mind cheap shots as long as they are acknowledged as such
Fair point, Brett. It’s just that we didn’t simply copy the Americans holus-bolus - our Federationists looked long and hard at the various systems of other countries and tried to avoid what appeared to be problematic aspects of some of them in favour of our own weird hybrid.
At least in our system it’s possible for Independents and minor parties to have an actual influence in the Senate. I suspect American politics would be in a much healthier state if the same were true there as well.
I think the idea of state representation in the Senate was also poached from the Americans.
New Zealand also had a fully appointed upper house, with the traditional British name: Legislative Council. We nicked the name ‘Senate’ from the US as well the idea of having it comprised of equal numbers of reps from each state. We went a bit further than the US by having Senators elected by the people, rather than appointed by the States, as the US did until 1912 (I think - the 17th amendment to the Constitution)
Proptional representation wasn’t used to elect the Senate until the 1948, so there was no minor party role prior. The previous sytems resulted in landslides for the old parties - the ALP won 33 out of 36 Senators at the 1945 election.
d
Katz, the People were *already* individually armed, before the writing of the Constitution — before the Articles of Confederation, before even the Revolution. At Lexington and Concord, the King’s army was actually trying to seize by force a publicly-stored militia arsenal, of the type in which you put your hopes for the defense of liberty; and they were opposed by militiamen and irregulars, largely armed with, uh… their personal hunting rifles, which they *kept* and bore. So we see that both public militia armament *and* private armament were simultaneously the norm, yet no heads were seen to explode from thinking about it; this was not considered a mad contradiction, and in the event proved quite handy. It also points out the weakness of relying solely on a public arsenal, viz., that it can of course (and eventually will) be seized by forces of tyranny. Gee whiz, how do we get around this problem?
Your reading violates not only plain sense and the properties of the English language, but even as it were the laws of motion (inertia in particular); what you propose is that a pre-existing state of affairs, known and recognized by the Framers, was intended by them to be altered to a brand-new state of affairs on the strength of a dependent clause and in clear violation of the main thrust of meaning. You are using a sentence which essentially says “The government shall not disarm the already-armed People, and there shall be no sword-hunts,” to call for a sword-hunt.
“The word keep did not in the 18th century mean the same as own. For example, in the early nineteenth century, the cricketing function of wicket-keeping was first identified and named. This individual kept the wicket. This didn’t mean that he owned the wicket or that he had it in his physical possession. Rather, he had the responsibility of superintending the wicket in the interests of his team — a collectivity.”
Oh brother. So the Bill of Rights is now to be understood in terms of cricket. Why did I guess it would come to this? Okay, wizenheimer, lookit…
“Thy turfy mountains where live nibbling sheep,
And flat meads thatched with stover, them to keep…”
–The Tempest IV.i
So that’s already an early-17th-cent. attestation of “keep” as “to feed, care for, maintain”; it doesn’t compel a sense of individual ownership, neither does it forbid it; individual ownership or ontology can, however, often be strongly implied, as in “to earn one’s keep”. You run straight to an exclusively collectivist reading and then try to colonize the word to your ends, which is partisan and thus questionable. But your reading is activist and limiting on behalf of your cause, whereas mine simply conserves the law of inertia. Since you earlier admitted that the Fourth shows that “the People” ultimately means individuals, we could read it as “the right of the People to [maintain] and bear arms” which is just workaday, like-ya-do language. The right of the “People to change their oil every ten thousand miles,” the right of the People “to rotate their tires regularly” etc etc.
A plain-spoken reading of the Second would be something more like “This new government shall not disarm the People, and, militias being handy things, that’s at least one good reason why.”
“Your reference to the language of the Fourth Amendment strengthens my argument. The rights of individuals (and I agree with your argument on this point) to be free of “unreasonable searches and seizures”. Thus, by implication, the right to privacy is not absolute and may be “infringed” after due process, and in the common — collective — good.”
Well, no, not really. For one thing, the Fourth goes into detail about the particular necessary conditions under which an individual’s right to privacy may be intruded upon (oath or affirmation, etc); the Second does nothing of the sort. So there are similarities and also differences, which would take up too much real estate here to tease out. Second, you’re doing a bait-and-switch in terms of your argument. I am arguing against your reading of the Second which permits arms in the context — and only in the context — of a publicly-regulated militia. I have said nothing about what we do about the interface between a right which “shall not be infringed” and such things as public safety and the common good; for instance, I am not advocating the right to weapons for insane persons and two-year-olds. I am arguing against your unnatural and profoundly limiting reading of the Second.
There’s also a philosophical assumption underlying your reasoning in this last which disturbs me, but I’ll have to think longer in order to state it clearly.
This is true. and the same thing happened in New York City. Look up the role of Leonard Lispenard in relation to this incident.
Private armaments were and are simply a category of private property, like blacksmithing instruments, ploughs, printing presses and a myriad of objects. The Fourth Amendment, previously referred to, provides the covering prohibitions against government tyranny for all of these private items, including firearms:
As you say, private gun ownership in pre-revolutionary America was a very commonplace thing. A gun was simply one of the many effects that a householder would own.
Therefore, in the light of the extreme breadth of prohibitions against government actions imposed by the Fourth Amendment, it is clearly not the issue of private ownership of firearms that drives the Second Amendment. It is something else. And I would submit that, the originalist interpretation of the Second Amendment is best satisfied by reference to the framers’ understanding of the structure and functions of a “well regulated militia”.
My reading seems “unnatural” to you because you are alienated by the passage of time, by culture, and who knows, by inclination, from the words and the sentences constructed with them in the last decades of the 18th century.
I included the reference to cricket to tease you.
A more pointed contemporary use of the word “keep” is in the term game-keeper. A game-keeper certainly did not own the wild-life that he superintended on behalf of his master. He was the agent of his master. The word “keeper” embodied his subordinate, not-ownership relationship with the game that he … well … kept.
I would suggest that the philosophy that you find disturbing isn’t mine, but rather that of the framers of your constitution, as enunciatd by me. Suddenly, these folk are no longer familiar to your milieu but rather talk of a time which is very different from your own and from what you have been taught to believe about them.
“A more pointed contemporary use of the word “keep” is in the term game-keeper.”
The word is big; your example is little.
“My reading seems “unnatural” to you because you are alienated by the passage of time, by culture, and who knows, by inclination…”
Well, we’re outsourcing everything else to foreigners; why not leave constitutional interpretation in the hands of foreigners as well?
Seriously, though, these remarks of yours are rather small in mind and spirit, and do little or nothing to advance anything like a reasonable position; I generally expect better of you.
“Not waving, but drowning.” Who said?
“A game-keeper certainly did not own the wild-life that he superintended on behalf of his master. He was the agent of his master. The word “keeper” embodied his subordinate… relationship…”
Funny how many forest- and park-rangers we have in this country in our national parks and public lands, and how few… what’s your word, sorry, I meant of course Her Majesty’s word, again? Oh yes, “game-keepers.” Je tache, en restant exact, d’etre poete. But then I’m sure all our traditions have flourished in quite accidental misunderstanding of the overtly tyrannical class-obsessed authority the Framers were evidently, by your lights, striving with all their might to install. Well, we can’t always succeed, can we now. Enjoy your subordinate relationships!
signed,
The Arch-Duke of Rockland County and His Men (oh, wait…)
It’s perhaps worth remarking that an important distinction is that most opinion polls show that a solid majority of US citizens favour a stricter regime than “no infringement”, and hence there is a good democratic argument for amending the amendemnt away from this interpretation.
housekeeper
bookkeeper
scorekeeper
goalkeeper
lighthouse keeper
I am not my Luger’s keeper.
I’ve always thought “to keep” in the context of the 2nd was meant to guarantee not just the right to own guns (and have them kept at the local barracks), but to “keep” them yourself.
Stevie Smith.
… wait, what?
Oh dear Japerz.
This passage is documentary evidence of how far you are removed from the original use of the language of the US Constitution and from the realities of the 18th century.
1. May I remind you that your non-class obsessed framers devoted several sections of your constitution to how non-free persons such slaves and Indians were to be enumerated (to their detriment), but never to be counted in the same way as free white males. Talk about subordinate relationships! This is not a critique of the framers. It is an acknowledgement of the world they lived in and the world they intended to create — hierarchies of a kind which at that very time had long been made illegal in England. The glory of the US Constitution is how it has become a more expansive document over time. But this is certainly not what the framers had in mind at the time of its drafting.
2. Game keeping and poaching may seem quaint to you, as it does to us 21st century Australians. But many of us are 21st century Australians because our first Australian ancestors were sent here for being poachers. For them illicitly taking game was sometimes literally a matter of life and death.
And no, as far as I know, we have no poaching laws here in Australia. Perhaps someone better versed in law history can explain why. I’m inclined to think that it was politically unacceptable for land owners to claim that much of nature in a new and raw society. But this is just a guess.
And yes, we have national parks too, and virtually no privately-owned beaches and in Victoria (a state) at least the right of public access to all permanent streams. Nature is to a huge extent public property. This may be the product of early and robust democracy energised by some very recent bad memories.
Shorter Katz:
My idiot leftist reading of the Second (and also possibly the Fourth, but by now who’s really keeping score) has been shown to be insupportable, so my desperate fallback position has now become (wait for it)…
“My opponents are TEH RACIST.”
Rinse and repeat for all (pretty much by definition) idiot leftist positions.
Yawn.
You know, I’d have at least a modicum of intellectual respect for leftists if you would at least admit it when you’ve been shown to be wrong… which from my POV is really rather frequently, from 1917 to present, though you’re not without your charmingly rude, outlander perspectives… Maybe, if youse-all could just fess up to how much you (like me and everyone else) really don’t know, then we all could actually build that bridge to Unity, as your false Obamagod has promised you in his (characteristically) falsified scriptures. Til then, ho hum.
Wow. Just. wow.
Wooo! Its gettin’ hot in here.
False Obamagod is harsh; but better than the ‘baked potato’ thing. That one wasn’t working for me, I must admit.
Speaking of failures of the left, and of the right for that matter - I have a post on the US blockade of Cuba.
(Who’s the jintero now, LE?)
Originalist that.
Like taking candy from a baby.
“Originalist that.”
Originalist what? Katz, I’m not trying to “originalist” anything; I was taking issue with your reading of a text, because I genuinely don’t agree with your reading and its implications — and so I was putting forth various reasons why I think what I think. I would add that the Court doesn’t agree with you either, so apparently your view is not as self-evident as you seem to believe. But as for this “originalist” business, I’m neither a lawyer nor a legal scholar, and I don’t have a vested interest in a particular elaborated theory of constitutional jurisprudence or in a particular school of approach, other than to try to be on guard against insane approaches. Lacking accredited technical expertise, I tend to view these sorts of problems the way one would look at a chess position. It’s also my belief that issues which fundamentally relate to questions of liberty for a citizen of this country, ought to be more or less intelligible to a reasonable citizen, without recourse to a law degree or a legal “approach”. As Stevens put it, “I am a native of this world,/ And think in it as a native thinks.” That’s my credential, for purposes of argument.
Your reading is far narrower than mine, and hinges on things like the word “keep” having only one specific meaning, rather than a range of meanings; or the notion that affairs in the 18th-cent. were ordered only one way, rather than many sorts of ways. So your burden of proof is far higher than mine, in my view; and in my view you have not met it. L’homme moyen sensuel doesn’t need to find my entire argument overwhelming, in order to opine that yours is not correct. L’h.M.S. merely needs to be persuaded that your particular and restricting views are not the only reasonable ones that fit the case, for your reading to collapse. I think I have fairly demonstrated at least that much.
You’ve responded by arguing in very bad faith, by switching both the terms of argument and even the subject numerous times, and now you’ve gone to the old racist mud-slinging well. Again. In short, you’re a regular dictionary definition of “classy,” ain’t ya, chum. So, I’m done arguing with you. It’s been, like, real.
laura — yeah, sorry about that, everybody blows off a little steam from time to time, and I guess it was my turn.
Lefty E — hmm, so the baked potato thing was really that awful, huh. Oh well, back to the drawing board. Note to self, must try harder next time. If there is a next time.
Katz — nuttin’. Ha, made you look.
cheers, all. I’m outta this thread. With the taste I’ve got in my mouth right now, maybe I’ll just send my private hovercraft over there to pick up Kim if she’s got the time, and the two of us can take a little blog-free cruise to nowhere… Although the engine on that thing can get pretty darn loud…
This is all very heartwarming, but not relevant to the core of the debate, except insofar as you would be prepared to argue that Scalia thinks “as a native thinks”. My argument, and my only core argue, is that Scalia does not think like a native.
Let’s review.
If you think that I am arguing against the notion that the Second Amendment grants the right for Americans to own firearms, then you are incorrect. I am arguing that Scalia’s originalist arguments sre inadequate.
If you think that I am arguing against originalism, then you are incorrect. I am arguing against Scalia’s clumsy exploitation of originalism.
If you think that I believe that the US Constitution is a fatally flawed document, then you are incorrect. If you want to see a fatally flawed constitution, take a look at Australia’s.
There are all sorts of reasons why the Second Amendment can be read as the right of individual Americans to own guns.
My argument was never against those readings of the Constitution.
My argument is against Scalia who thinks he can construct a position supportive of the broadly-defined right to own firearms from an originalist position.
My argument isn’t even against originalism per se. It is simply against Scalia’s poor attempt to make an originalist argument. Distressingly, four other justices of the US Supreme Court made the same historical errors as Scalia.
If some folks get a little hot under the collar because they cannot distinguish between a narrow argument and a generalised critique of the document under consideration, that’s not my problem.
JPZ, do you recognise the allusion in Mercurius’s post title?
laura — no, I actually don’t. what’s it refer to?
Katz — well, apologies for being excessive, it does appear I’ve gotten overly touchy and grouchy here, and not just in the obvious spots. If you wish to argue the thing from a legally learned perspective (and you sound as though you have some form of legal education), then I just can’t participate in that vein, because I lack that training. Your earlier arguments, though, struck me as being of the sort that a layman could engage; and as I say, questions this fundamental should be argued in public in non-specialist language and habits of mind. (not exclusively, mind you, nor necessarily within the Court itself, but it should be done.)
The history of originalist interpretation and Scalia’s methodology, will probably remain mostly beyond my ken. But I would agree that this Court has made some zany rulings in the past, just in terms of plain sense. I don’t know the ins and outs of their reasoning on this one, but I think they at least made the right call, even if (as you imply) for the wrong reasons.
Ironically, the stoush we’ve gotten into has been for me actually a 180 detour away from another aspect of the question I had mainly been hoping to discuss, but I think we’re well beyond that now, (and I was also hoping skepticlawyer might return for an additional two cents.) Oh well. Things are tuff all over.
And now I really am checking out of this thread for good and all, in the hopes that I’ve cleaned up some of the broken glass and knocked-over furniture. Hey, look at all this loose change that was under the sofa cushions! I mean, I figured there’d be *some,* but this looks like, I dunno, maybe ten bucks’ worth…
Couldn’t find a video (didn’t look very hard) but if you listen to this you will get the reference.
Jacko
Then google Mark ‘Jacko’ Jackson to get the rest of the story.
Yeah, no youtube. Or at least, only a shitty montage that stalls 20 seconds into the song. WTF?
Where are the guardians of our cultural history?
Donnelly?