READING BETWEEN THE LINES

There are few things in law, government, or politics more ridiculous than the notion of constitutional "originalism", the idea that the law is to be interpreted only in light of the intent of its authors. Anton Scalia, Clarence Thomas, and many others of those stripes wear this label as though it is the mark of a True Defender of the Faith. Originalists, textualists, and strict constructionists are the real lovers of the Constitution, whereas interpretivists are a bunch of liberal defilers who make up whatever it is they want to see in the document. Conservatives respect the law, you see, and liberals do not.

If it is not immediately apparent why this is a complete daily ration of happy horseshit, please consider how originalist logic works. Take DC v. Heller (2010), for example, the case in which the conservative majority decided for the first time in 230 years that the 2nd Amendment protects an individual right to bear arms. In Scalia's majority opinion he cites copious historical evidence that he thinks is proof that the 2nd Amendment was intended to define an individual right. So you see, Anton Scalia isn't making something up or interpreting a new right out of thin air based on his opinion like a liberal would. Instead, Scalia is asserting this new right based on his opinion of what the authors of the Constitution thought! Isn't that so much better? Because really, how much room for personal bias, judgment, and ideology could there be in the selective interpretation of fragmentary historical evidence?

In short, it's simply another form of judicial activism and interpretivism. They merely add an extra step to the process, and you can be certain that they'd be howling like stuck pigs if liberal judges decided that they could read the minds of the attendees at the Philadelphia Convention.

The idea of Scalia as some sort of staunch defender of the Charter is particularly galling, because in his old age he isn't even bothering to cook up dubious assertions about James Madison's thought process as a cover for his personal preferences. He's lapsing into strict constructionism (which he has ridiculed publicly in the past) or the kind of anecdotal, let's-just-be-practical reasoning that he claims to detest. In the recent companion cases about plea bargaining and the effectiveness of counsel (Missouri v. Frye and Lafler v. Cooper) Scalia uses quite a bit of magical reasoning in his dissents.

In Lafler, a defendant's attorney failed to tell him that the state offered him 3 years in a plea bargain, and he went to trial and got 6. Scalia wrote the dissent, arguing:

With those words from this and the companion case, the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965). The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today’s opinions deal with only two aspects of counsel’s plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be worked out in further constitutional litigation that will burden the criminal process.

God, the courts are so busy. You people and your rights inconvenience us. You should be subject to what all parties agree in this case and Frye is ineffective counsel because the Court is too busy and there might be future cases the Court would have to hear on this matter. Additionally, did you know that because plea bargains are not binding until accepted in court they don't actually count as part of "the criminal justice system"? It's true!

And it would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the plea bargaining process that the Court today announces “‘is the criminal justice system,’” Frye, ante, at 7 (quoting approvingly from Scott & Stuntz, Plea Bargaining as Contract,101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from “the criminal justice system”? Anthony Cooper received a full and fair trial, was found guilty of all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial.

So, you know, it doesn't matter if your ineffective counsel fails to tell you about an offer as long as you get a fair trial afterward! In Frye, a defendant rejected a plea offer after his counsel (bafflingly) told him that a jury could not find him guilty of attempted murder because the victim was shot below the waist. Here again Scalia shows his strict adherence to the Constitution:

This is a companion case to Lafler v. Cooper, post, p. ___. The principal difference between the cases is that the fairness of the defendant’s conviction in Lafler was established by a full trial and jury verdict, whereas Frye’s conviction here was established by his own admission of guilt, received by the court after the usual colloquy that assured it was voluntary and truthful. In Lafler all that could be said (and as I discuss there it was quite enough) is that the fairness of the conviction was clear, though a unanimous jury finding beyond a reasonable doubt can sometimes be wrong. Here it can be said not only that the process was fair, but that the defendant acknowledged the correctness of his conviction. Galin Frye’s attorney failed to inform him about a plea offer, and Frye ultimately pleaded guilty without the benefit of a deal. Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. So little entitlement that, had he known of and accepted the bargain, the prosecution would have been able to withdraw it right up to the point that his guilty plea pursuant to the bargain was accepted.See 311 S. W. 3d 350, 359, and n. 4 (Mo. App. 2010).

Even though more than 90% of cases in our legal system our disposed of with plea bargains, Scalia continues to beat this idea that because they are not immediately binding when offered, it really doesn't matter whether or not your counsel botches it. No big deal. You'll just do a lot more time in prison. Which was the Founders' intent – that individuals' rights in the justice system be kept to a minimum. Right? I have to check my notes but I'm pretty sure that's what they wanted.

These cases, although not greatly publicized, should serve a dual purpose as Anton Scalia's epitaph and proof that he is an irredeemable asshole adhering to an ideology that takes "judicial activism" to heights that would make Earl Warren blush.

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51 Responses to “READING BETWEEN THE LINES”

  1. FMguru Says:

    What always infuriates me about Originalism is that the Constitution that the framers laid down DOESN'T EXIST ANY MORE. It's been ammended a couple dozen times, sometimes radically (as with the anti-slavery ammendments). No one cares what Jame Madison thinks about the proper roll of the Federal government because that got changed in 1865. Moreover, the provision to change the Constitution, even radically, was put there in the first place by the framers because even they knew that the document would have to change with the times. If the framers had believed in Originalism, then there never would have been an ammendment procedure in the first place. It's bullshit, even on its own terms.

  2. FMguru Says:

    And never mind the creepy belief that the best way to interpret our fundamental rights is to hold a friggin' seance and try to read the minds of people who died 200 years ago. I swear, they'll dig up the framers and re-enact the Cadaver Synod next.

  3. Middle Seaman Says:

    No need to argue with originalism. It is bs invented to allow evil doers to ignore the constitution by preceding every wrong headed decision by: this is what they meant.

    Citizen united was a pure invention taken out the Italian constitution of the 1940s. Or something of that sort. The arguments raised by the right supremo court are ridiculous. They made up their mind when these judges were in high school.

  4. Xynzee Says:

    Still think it doesn't matter if it's Mittens or Obama this cycle?

    Why they didn't call the healthcare mandate a "tax" and punt it to 2014 with this current composition of the court is anyone's guess. Only if it's to nail down now once and for all as being a legitimate position for the govt to take and end the silliness.

  5. ladiesbane Says:

    This sounds remarkably similar to Bible literalists, who claim to adhere to the pure Word, rather than indulge in the application of critical / transformative thought — a Liberal vanity designed to twist God's word to support modern concepts that God did not have the words to reject when He wrote the Bible. Or He would have. We're certain. Based on our body of knowledge rather than, you know, specific facts or anything.

    Literalists claim that they don't interpret the Bible, they just follow it. What they neglect to mention is that they ignore whatever they don't like. Instead of admitting they do this, and allowing their criteria to be checked (criticized, argued against), they claim not to apply any personal biases and deny that their preferences play a role. This lends them absolute moral authority. Or so they think.

    It always boils down to, "This part I like, this part meh, and this part over here…we just won't talk about it. If anyone asks, we'll admonish them to use their common sense, since it was obviously never intended to be interpreted their way (i.e., blatantly contradicting the part we like.")

  6. buckyblue Says:

    At what point to we just accept the fact that the Constitution was good for what it was, kept the country together for about 70 years, but is woefully outdated for today. Seriously, in what world does Wyoming get the same representation as California. About a third of the country is black or hispanic; less than 10% of the House is minority thanks to gerrymandering. There are NO blacks in the Senate. Our adherence to the big C as if it were Biblical scripture will be our downfall. We can't solve the problems our country needs solved, not the least of which is people like Scalia and Thomas, Boehner and Cantor and Ryan, McConnel and Kyl, who have their head so far up their ass they can chew their food twice. Why should we base our future on some dumb cracker's mind reading of Madison? They'll strike down the ACA because Madison wouldn't have wanted it. What the fuck did Madison know about the health care needs of people in the 21st century? Why don't they just do what's right for a change, rather than conger up some bullshit that fits their politics that are only allowed because we anchor ourselves to this outdated and inadequate form of government.

  7. Tim H. Says:

    Excellent point that what we're seeing is judicial activism in another direction. My impression is that the Warren court believed that the big shots could look after their selves, it was the little people that needed help. The current court, and the contemporary conservative movement, acts like it should be the other way around, as if the degenerate, dissipated heirs of mighty industrialists couldn't do it alone.
    And a quibble, we've had black senators before, we'll have them again, if my congress-person decides to ascend to the next level of the snakepit, I'll vote for him not too likely, since Missouri is kind of a nasty red splotch with blue on the east and west sides, and it's hard to get Saint Louis Democrats to support a Kansas City Democrat.

  8. c u n d gulag Says:

    A lot of this "Original Intent" b*llsh*t bcomes from the wave of Dominionist Christians that Reagan welcomed into the R party.

    They have a Manichean world view on everything -evil v. good, black v. white, right v. wrong, etc…

    And they do look upon the Constitution like they do the Bible.
    They "know" the answers are there, if only they look hard enough. Never mind that, when you come in with presupposed ideas, if you look hard enough, the answers you seek can be found in a car owners manual, a romance novel, or a children's book.

    The Bible, at least, was supposedly "The Word of God," written down by men. So, there's at least SOME justification to say it is infallible – never mind that parts of it were written decades, sometime centuries, after events.

    The Constitution was 'the word of men,' written down by men.
    Men who didn't think themselves infallible.
    Men who had seen the world continuing to change around them, as The Age of Enlightenment followed The Protestant Reformation and The Renaissance, and science and secular philosophy began to supplant God at the center point of the universe.
    Men who were seeing, in their own country, industry and manufacturing taking the place of farming.
    Men who knew that laws that were written that very day, could be outmoded just a few years/decades later, and that there was no reason to write them in stone. And so, they were men who put into their codification of laws, an owners manual for the nation, aka, The Constitution, a way to change the very laws they wrote – an "Amendment Process."

    Therefore, the only "Original Intent" in the Constitution, IS change!

    But people like Scalia, who were put into positions of great power to NOT see change, can't see change, and won't see change.
    The only change they DO want to see, is reactionary – to march backwards, rather than surge ahead.

    Right after the birth of this nation, political parties began to form. There were "The Federalists," headed Adams and Hamilton, who were more for a form of monarchy and aristocracy in the new nation – where wealth determined power.
    They were also for a stronger Federal government – hence, their name.
    They were also "Originalists" when it came to the Constitution.

    The "Democratic Republicans," headed by Madison and Jefferson, believed more in the common man and democratic-republicanism. They were against Hamilton and the Central Bank (which, they did hate to admit, Hamilton did a great job of running, and lowering/eliminating the debt).
    And they were for greater states rights.
    And Madison, who actually wrote most of the Constitution (and realized its potential flaws), at the behest of Jefferson, added "The Bill of Rights," and an amendment process. Not very "Originalist," is it, when the guy who wrote most of it said he needed to add an amendment process, and certain specific rights?

    See anything familiar here?
    With a few changes in party names and positions, we've been having the same fight for over 220 years. Even a Civil War, which finished almost 150 years ago, didn't settle this fight. And don't even get me started on that – where Sherman, after burning the South, should have salted the f'in earth, ala the legend of Rome and Carthage.

    Enough yapping. I've posted enough of my word-turds here this morning.
    So, I'll end by saying – "There's nothing new under the sun."
    It's the same old dance, just with newer music, and different dancers.

  9. Number Three Says:

    It's "Antonin" not "Anton".

  10. Major Kong Says:

    They're constitutional originalists right up until they want to institute torture or indefinite detention without trial – then they're all "The Constitution isn't a suicide pact".

  11. xynzee Says:

    @Bucky: The US has never been a true democracy, as it was intended not to be. It's a Representational Democracy. The intent was to enable small voices to still have an impact rather than get steam rolled by the majority.

    Unfortunately, you're correct that the system has been grossly gamed with gerrymandering. Perhaps that's something that should be readdressed, by the SCOTUS (not this one).

    Taking up Ladies point about how fundies like to pick-n-choose just as much as their "liberal" counterparts do, Originalists seem to miss an obvious fact that the authors put explicitly into the Constitution, and that's the ability to make changes to it. Duh!! If they had believed they'd gotten it correct the first time then there would be no provision to make amendments.

    The addition of the Bill of Rights proves this point explicitly. It wasn't apart of the original Constitution, but came much later.

    Probably the single best piece of penmanship is in the 8th. What the heck does "cruel and unusual punishment" mean? Well it means just that. It's both perfectly explicit in mean, yet infinitely vague as well. The author recognised that what they considered common place then, would change as the mores of society changed. By default, it prevents the courts from becoming regressive in terms of punishment. Now that flogging has effectively been outlawed, we cannot resurrect it as a form of punishment.

    So if one wants to be an Originalist, then that means that the Original Intent was that the document would and could be changed as the needs of society changed.

    Oh yeah, silly me. The Right believes that there is no society, only individuals. Which again, goes against a Biblical view of the world. "Sinners" were to be rooted out and killed because they posed a threat to society, but I digress.

  12. bb in GA Says:

    @Major Kong

    The NDAA is bi-partisan and a non-Originalist, D President signed it. The indefinite detention can be laid on non-Originalists as much as anyone.

    I don't think we are always in 'seance' mode in determining Original intent. There is a wealth of understanding of intent in the Federalist Papers in particular.

    Further, some subjects like the death penalty are clearly part of the Constitution and Originally intended so it is rather specious (from an intent standpoint) to argue from another part of the Constitution that the death penalty is "cruel and unusual punishment."

    An of course, the legislative branch (in this case the States) may limit or abolish the death penalty as they see fit as many have. That is also part of the Original intent as some have pointed out, the amendment process.

    //bb

  13. Nick Says:

    The argument several have made here, that originalism is stupid because the Constitution was meant to be changed, is rather ridiculous on its face–if you don't see the difference between the amendment process and reinterpretation of the existing document, I'm not sure I can help you with that.

    In any case, it seems that any time I read complaints about "judicial activism," regarding any of the SCOTUS judges, the argument tends to boil down to "I disagree with Justice X, therefore he/she is a judicial activist, whereas the judges I agree with are upstanding defenders of right."

  14. J. Dryden Says:

    @ FMGuru: Were such a seance to be held, I suspect Scalia et al. would promptly be verbally pistol-whipped by the ghosts they summoned.

    Madison: "Idiots, we threw the thing together with spit and sealing wax over four months in weather so insanely hot and humid that nobody could think straight or get a decent night's sleep–I had to juggle lunatic slavery advocates and equally lunatic quasi-monarchists and everybody was paranoid to the point of secession from the get-go. It was designed to get everybody to shut up, go home, and get busy building the social and political infrastructure the country really needed to survive. The slavery compromise really should have been your tip-off that we weren't friggin' Mohammeds taking dictation from God in the wilderness–we were doing what the immediate circumstances demanded and for which all precedent was inadequate because the circumstances were too modern/novel for us to rely on precedent–see the connection, there, Sparky?"

  15. Dookie Says:

    Is Ed saying he doesn't believe the 2nd Amendment defines an individual right? What? I mean…isn't that pretty much what the rest of the bill of rights does? To limit the power of the federal government yet establish a basic set of rights (of people) that apply to all states? Why would the 2nd Amendment be so different from the rest of the Bill of Rights? I'm going to read it real quick here…wait…the right of the people to keep and bear arms shall not be infringed…the right of who? The people. I'm a people…

    I look forward to the usual "right-wing redneck idiot evil doer" attacks or the calling out of a spelling or gramatical error.

  16. c u n d gulag Says:

    Dooke,
    Please read THE ENTIRE THING!
    Here, I'll save you the trouble of "Googling:"

    As passed by the Congress:
    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.

    As ratified by the States:
    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.

    So, Dookie, what "well regulated militia" do you belong to?

    Charleslton's "Cheeto's" Raiders?

    Or "The Rocky Mountain Dew Boys?"

  17. Badmotherfucker Says:

    Like virtually all libertarian/conservative fad ideologies, Originalism isn't totally absurd in theory (unlike the notion of a 'living constitution'). It follows that in order for a constitution to remain authoritative, the interpretations of its prescriptions must remain consistent, until they are amended to mean something else.

    But of course it fails miserably in reality and in practice, with the obviously bogus premise that one can pin down the universal mindset and intent of 18th century wig-wearers. What's really amusing is reading Scalia's dissents in all the privacy cases dealing with sexual morality, ala Lawrence and Casey, where he projects every one of his fucked up Catholic pathologies into the heads of founding father heathens, half of whom were shtupping Harriet Tubmans on the side. Or in the marriage cases, where in scrounging desperately to cherry pick historical anecdotes to ascribe to the "traditions and conscience of our people," he manages to reference all the way back to ancient Greece, where of course marriage between 1 man and 1 woman may have been all well and good, when your wife wasn't a slave, and when you weren't educating lithe young men on the majesties of platonic butt love.

  18. JohnR Says:

    Personally, I don't even care about the various justifications people use for their folly. I think Nick's exactly right in most folks' working definition of 'judicial activism', and when you combine that with the prevailing line of PR coming down the media pipeline, it's probably not surprising that the bulk of the country isn't going to be too upset when the SC scraps "Obamacare" (piecemeal or entirely, my Magic 8-ball doesn't specify) today. The venerable Justice Scalia has always been a pro at finding to his surprise that tradition and The Law lead him inexorably to his politically desirable outcome, and since the Sphinx-like Justice Thomas has set up even farther to his right he hasn't even bothered much to try to sound convincing. It's a good thing that no "Conservative" can ever, by definition, be guilty of the heinous crime of Judicial Activism or these guys might find themselves in for some uncomfortable self-reflection sometime. Even if someday they do, it will luckily be far too late to have any measurable effect on where they're driving us.

  19. PWL Says:

    Frankly, I think "Citizens United" took care of any such notions about Scalia, especially since, if I remember correctly, that case overturned a fair amount of established law on the issue..there's a reason I call this court the "Dred Scott" Court……

  20. S Says:

    Nick, there is clearly a difference between reinterpreting a document and changing its wording, but I think the point made here does not identify the two things. I think the argument goes something like this: Because the constitution can be amended, its authors themselves did not think it was already perfect. Thus even if one wanted to follow its authors' intents, one would have to treat the document as something imperfect that may have to be adjusted.

    Now, whether the proper way of adjusting the document is by reinterpreting it or by changing its wording is a different question.

  21. Rick Massimo Says:

    "In short, it's simply another form of judicial activism and interpretivism."

    As gulag hints at, it's simply another form of religion.

  22. acer Says:

    The GOP has a good thing going here – Founding Fathers fetishism works on hysterical teabaggers just like Jayzus fetishism works on religious nuts.

  23. mothra Says:

    Well, as bad as his dissent was on those two cases, the quote that should be chiseled on his headstone should be this:

    “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

    Fucker thinks it's fine and dandy if someone who is innocent gets the death penalty.

  24. c u n d gulag Says:

    mothra,
    It's 'cause he knows it won't be him.
    And 99.999999999999999999999999999999999999999999999% chance it won't be anyone he is related to, is friends with, knows, or has met.

    The reason it's not 100%, is that maybe some Nigra or brown person he may have come in contact with, might end up in the clutches of the law.

  25. Pat Says:

    My favorite bit about textualism is that it never seems ready to grapple with the naggling fact that the text of the Constitution does not actually provide for judicial review. Indeed, if one were to read just the bare text, one would conclude the Framers never intended the federal courts to do anything but decide whether Ellis Island belongs to New York or New Jersey and occasionally hear a lawsuit when a Delaware farmer believed he couldn't get a fair hearing in a Connecticut court. (One would also likely conclude that far from being coordinate and equal, the presidency and judiciary were clearly supposed to be subordinate to the Congress, but that's a separate story.)

    And yet the text must be all wrong about this, for I see Justice Scalia is about to write an opinion (lauded for its supposed humor and clarity by all the usual suspects, who haven't noticed in twenty-five years that Justice Scalia really isn't particularly clever) that since the words "community rating" don't appear in Article I, nor can they appear in the Federal Register.

  26. Nick Says:

    Cund: US code defines two types of militia: the "organized militia," or National/Coast Guards and Armed Forces Reserves, and the "unorganized militia," which consists of everyone eligible for the draft. So contrary to popular belief, most men are in fact members of the militia, regulated by Congress.

    S: Obviously the document is open to change, but I think the idea that we should ignore the process laid out for that change (that is, amendment) in favor of deciding, say, that free speech doesn't apply to the Internet and the Second Amendment doesn't apply to machine guns is a dangerous road.

  27. Chicagojon Says:

    I just started flipping through John Stewart's "America" this morning and thought he did a good job mocking constitutional originalism in his forward written as Thomas Jefferson:

    “Do you know why we call them amendments? Because they amend! They fix mistakes or correct omissions and they themselves can be changed. If we had meant for the Constitution to be written in stone we would have written it in stone. Most things were written in stone back then, you know. I’m not trying to be difficult but it’s bothersome when you blame your own inflexibility and extremism on us. Not that we weren’t awesome. We wrote the constitution in the time it takes you nimrods to figure out which is the aye button and which is the nay.” (pg. x; Thomas Jefferson’s forward)

  28. Sarah Says:

    Neocons wouldn't know consistency if it walked up and bit them in the ass. We were talking about gender and race issues in my Philosophy of Democracy class yesterday evening, and the talk got around to abortion as a component of feminism. It was pointed out that theoretically (and the way most pro-choice activists would have it) a woman can unilaterally choose to have an abortion even if the father/sperm donor wanted to see that fetus carried to term and offered to take custody and raise it himself. My classmates were talking about how this is OMG SO UNFAIR because the nasty feminists want to have ALL THE CHOICES, et cetera. I then pointed out that we had been talking about abortion only in the context of a pregnant woman saying that she wanted to have an abortion right before going out to go shopping and get her nails done, with the father of the zygote crying about how his sperm was sacred and he wanted to experience the joy of passing his wisdom down to the next generation, et cetera. I then put forth the question of what would they say about a situation where a woman who became pregnant (accidentally or otherwise) decides that she would like to carry that fetus to term because she believes that life is precious, while the sperm donor whines about how he doesn't want to pay for 18 to 22 years of diapers and college tuition. After all, it would be awfully hypocritical to claim that it's the woman's body and the woman's choice in the second situation, but not the first, and if they believe that a man should be able to compel a woman whom he made pregnant to carry through with that pregnancy, he should be able to force her to get an abortion even if she doesn't want one. There is no compromise in these situations; one must make a decision one way or the other. Yes? So whose choice should it be, and on what basis should he or she be able to make that choice?

    Oh. My. God. You could have heard a pin drop in that room. The professor quickly steered the conversation towards the race issues component, and we spent the rest of the class talking about the 1992 LA riots and Trayvon Martin.

  29. amcoco Says:

    @Number Three:

    Beat me to it ;D

    @Dookie @c u n d gulag:

    As gulag points out, there is a prefatory clause to the Second Amendment, which "originalists" asserting an individual right to bear arms almost always conveniently forget when clamoring for their guns.

    What is the Second Amendment intended to do? We can't really know, because the Founders weren't kind enough to drop us a lifeline on that particular point. My reasoned opinion (one shared by many constitutional law scholars, including both of the fine gentlemen who taught my con law courses in law school) is that it was intended to establish, and legitimize, the national guard (oh, THAT "well regulated militia"). But, you know, the contrary reading is also legit – i.e., please, citizens, by all means keep your guns (because, inter alia, you might need to shoot someone one of these days). We're seeing how well that reasoned approach is working in Fla…

  30. amcoco Says:

    @Nick:

    So if all draft-eligible males are regulated members of the "militia," does it logically follow that the Second Amendment confers an individual right – but only if you're a man?? (Heck, that probably IS the "originalist" view.) I think the more logical reading is that draft "eligible" males are not "regulated" members of the militia (hence the term "unorganized") – until and unless their draft card gets pulled.

  31. Nick Says:

    Amcoco: in response to your first post, I have two main issues with the "collective right" interpretation of the Second Amendment. First, the idea of a collective right is pretty much bullshit on its face (it's like arguing that freedom of the press means only the press owned by Congress, not any old press). Second, why would the framers of the Constitution feel the need to enshrine the right of the armed forces to have guns? That's pretty much the definition of an "armed force," and putting it in a list of rights retained by the people makes no sense. ("You have the right to free speech and freedom of religion. The army can have guns. You have the right not to quarter troops. You have the right to demand that the cops have a warrant.") If you think the right to keep and bear arms is outdated since we have a standing army, that's another argument entirely–one I disagree with, but it's more logical than acting like there was this random definition of an army in the middle of a bunch of individual rights.

    To your second post: IIRC, the code in question dates to 1913, so neither women in the military nor gun control were really a "thing." That aside, I bring it up mostly to illustrate that "militia" can be, and still is, used to mean anyone capable of bearing arms in the defense of the nation (which obviously includes women, were it to be updated for a modern society). Again, the idea that the author would feel the need to specify that an army should be armed seems like a silly argument to me.

  32. Jamie Says:

    well, the rights of white property owning Anglo-Saxon male, if you remain true to the original intent of those who wrote the constitution..

  33. Jason Says:

    For the record, in Heller, the court was unanimous that the 2nd protected an individual right.

  34. Da Moose Says:

    The other day I was looking through a large format telescope a rich friend of mine owns. As I focused the eye piece to clarify the rings of Saturn, I noticed a strange object in a tight elliptical orbit around the planet. I asked my friend if that was a NASA probe. He said,"No, that's just Antonin Scalia's ego."

  35. Pat Says:

    Jason, I can't believe I'm taking the time to respond to this, but no. The Court was most certainly not unanimous. You appear to be confused by this passage:

    "Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

    Which, while deliberately opaque, has at least the virtue of being found on the first page of Justice Stevens's dissent. The concession is entirely procedural; state militias cannot bring lawsuits, so their rights have to be enforced by the natural persons constituting their members. Had you read on, you might have found:

    "It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee 'to keep and bear arms' was on military uses of firearms, which they viewed in the context of service in state militias."

    To wit, the entire constitutional question. Does the 2nd Amendment right protect only the existence of state militias, or does it also create an individual right that can be asserted outside use in a militia? Stevens's answer, in case you missed it, is "No, we should not unsettle two centuries of jurisprudence simply because five members of this Court apparently subscribe to Guns & Ammo."

    Or look at Justice Breyer's dissent:

    "The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18thcentury citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern."

    I really don't know how to put it any plainer than that. Breyer is saying the communal right can sometimes succeed; the purported individual right must fail. How on earth do you square that with the Court unanimously endorsing the individual right?

  36. Arslan Says:

    Lucky day for you Nick, I'm here to explain why you are wrong.

    First, when the founders spoke about a well-regulated militia, this wasn't about the army. The founders were typically suspicious of large standing armies, which at the time had still been something of a novelty in Europe since the fall of the Roman empire(excluding of course the Ottoman Empire). Moreover, militia members were drawn from the people, and they were expected to possess their own weapons, which at the time weren't significantly different from military weapons.

    Now some people have claimed that "well regulated" actually means "well trained" or "well drilled." However, these people are morons. "Well regulated" means exactly that, regulated. Even if it did mean "well trained," then we might ask well trained by whom? Does the gun lobby suggest that all who keep and bear arms have formal training? Nope. Who would supervise this training to see that they are indeed "well trained?"

    Then there's the little problem of the "militia" after "well regulated"(which apparently means 'well trained' in some other dialect of English not known to linguists). Individual citizens well trained(by whom?) with their diverse array of individual weapons do not constitute a militia. Unlike in that era, there is absolutely no statue which says males must perform any kind of military service, even in an emergency. So clearly Bill with his Mini-14 and Dave with his Norinco SKS do not constitute any kind of militia.

    However, I am not what one might call a gun-control advocate. I wholeheartedly support a society where everyone(women included) is responsible for service in a real militia, and they would be well trained a regulated. So here's where I would strike a bargain. Do not ban guns, per se, but rather regulate the sale and make stiffer punishments for crimes committed with guns. It simply makes no sense to let people openly and freely sell weapons to each other without an FFL. Furthermore, the Constitution says nothing protecting the right to sell or even buy arms. If I wanted to whack someone in the US, I could easily do it simply by buying a gun in a gun show. I'd be far outside the reach of US jurisdiction before they ever find the guy who sold it to me, and his description would look nothing like me.

  37. Nick Says:

    Arslan: You come so close to being right, only to veer away at the last second.

    You are correct about the militia being drawn from the people, who possess their own weapons. My reference to the armed forces was in response to those who believe that "militia" was meant to refer to an organized, government-equipped militia like the National Guard. Given that much of the fighting in the Revolutionary War was done with guerrilla tactics, "militia" obviously means citizens with individual weapons–guys with Kentucky rifles sitting in trees popping off shots at British officers. Yet later, you claim that "Bill with his Mini-14 and Dave with his Norinco SKS," the modern equivalent of James with his Kentucky Rifle, are unprotected by the Second Amendment.

    I also agree that "well-regulated" means legally regulated. You know, kind of like how the federal government can decide to call up anyone who's registered for Selective Service, and how the law defines exactly who that is. In the event of that regulation failing, of course (say, in the event that the federal government is rendered unable to perform its duties), the members of both the organized and unorganized militia are meant to take up arms on their own.

    As for gun shows, as you may or may not be aware, FFL dealers (who constitute the majority of sellers at most gun shows) have to perform background checks regardless of where the sale takes place. It's only private citizens who don't have to do so (although they still have to check for residency, which involves showing a valid picture ID). Sure, you could ban private person-to-person sales. But according to a study done by the Bureau of Justice Statistics (I can provide the link when I get home from work, if you'd like), less than 2% of guns used in crimes were purchased from gun shows or flea markets. Outside of gun shows, it'd be more or less impossible to enforce a person-to-person regulation without registration of every firearms, existing or manufactured (which, considering that there are something like 300 million guns already in the US, would be completely impossible). I'm of the mind that if a law doesn't work, regardless of how well-intentioned it may be, it shouldn't be on the books.

  38. Arslan Says:

    " Given that much of the fighting in the Revolutionary War was done with guerrilla tactics, "militia" obviously means citizens with individual weapons–guys with Kentucky rifles sitting in trees popping off shots at British officers. Yet later, you claim that "Bill with his Mini-14 and Dave with his Norinco SKS," the modern equivalent of James with his Kentucky Rifle, are unprotected by the Second Amendment."

    I'm not going to blame you for this failure because it is on the poor state of history education in American schools. The Continental congress formed a standard army which fought the British(with the help of the French). While guerrilla tactics were indeed used, this does not mean that the militia crept around popping off officers from behind trees. First of all, rifles were not as widespread as muskets back then. Second, rifles were typically still muzzle loading, and since the Minie ball was still a long way in the future, they were difficult to load(unlike a smoothbore). The only way you could do damage to the enemy was to use massed fire in a more or less conventional way.

    So these militia units were trained, drilled, subject to military command, etc. Also, being registered for selective service does not make ordinary citizens part of a militia. For one thing, they are never called up. If they were called up, the would have to actually join the military, not necessarily the National Guard, the real successor to the militia. Also, only men need to sign up for selective service, ergo if you were right then the US could legally deny women the right to keep and buy arms.

    I am also aware of the rules of sales at gun shows, as I have bought and sold weapons both privately and via dealers. I'm saying that private sale should be restricted. It's also not that hard to deter people from selling person-to-person. If they buy from a dealer, it will have to be registered. If they sell it to another person illegally, and that person commits a crime, they could be charged. Let them sell legally to authorized dealers.

  39. AK Says:

    Thank god we have a time-traveling mind-reader on the Supreme Court. It makes things so much easier.

  40. Nick Says:

    Arslan: Yes, there were many conventional units, especially early in the war before a large number of them were obliterated by the better-trained and often more experienced British troops. The fact that rifles were not as widespread is precisely why the American troops that had them were so effective–nobody was expecting to get shot from the kinds of ranges of which the Kentucky rifle was capable. And long loading times make much less of a difference when nobody knows where you are and nobody can shoot back. For major conflicts, yes, large numbers of troops were needed; however, for small attacks, which greatly lowered British morale and often targeted officers (thus making British troops reluctant to get promoted), guerrilla tactics were indispensable. They would be even more so in modern times, when advanced weaponry makes massing an inferior force along battle lines a suicide mission, but guerrilla tactics are still effective (see also: Vietnam, Afghanistan).

    As for Selective Service, my point is that there is a militia consisting of all men capable of bearing arms (yes, it should be updated to include women–it's worked pretty well for Israel–but that's another debate). The idea behind Selective Service isn't just that we might need a bunch of soldiers, it's that everyone is responsible to one degree or another for the common defense–exactly the idea protected by the right to keep and bear arms.

    How do you propose to register every weapon in existence? Do you suppose that people who plan to use their weapons in crimes will submit the serial numbers to the police beforehand?

  41. Arslan Says:

    Do not think it isn't obvious that your Revolutionary War history is largely derived from movies like The Patriot. The battles of Saratoga and Yorktown were not "early" in the war, and did not involve farmers taking pot-shots at British officers. In fact the US won largely because of the French, who supplied their own regular units and of course their navy.

    Vietnam and Afghanistan are extremely bad examples. The NLF(Vietcong) were all but wiped out after the Tet Offensive; it was the NVA who had to take the brunt of the fighting after 1968. Afghanistan is also bad because a thorough military analysis shows that even after the Mujehadeen acquired MANPADS, they still failed to inflict serious military losses. In any case, nobody is advocating the legalization of RPGs, MANPADS, or heavy machine guns in the US.

    Next, Selective Service is not a militia. It was used should the draft ever be re-instated, and draftees go into the regular standing military. Again, as it is your claim would deny women the right to keep and bear arms. The fact that nobody is trying to change this is proof that nobody in government seriously believes the selective service is some kind of "militia" of any sort. If this were true, we could ban gun possession among fat and disabled people, as they would not be able to adequately provide for the common defense.

    Furthermore, it is quite easy to enforce the law I am talking about. Most guns which are sold via dealers are registered when the background check is done. States can request people register their guns. If you get caught committing a crime with an unregistered gun, you get slapped with an additional charge carrying at least a few years(which get added to the other charges you might have incurred). See any individual can understand that if he uses a gun, he is likely to be caught should he use it.

  42. Nick Says:

    Never actually seen the Patriot–from what I've heard, it's a shittier New England version of Braveheart. My knowledge comes from reading and watching documentaries regarding the Revolutionary war. The French and the regular army were certainly important to the conflict, but discounting the effect of guerrilla tactics and assassinations demonstrates a lack of understanding of the (especially psychological) warfare at play in the conflict.

    As for Vietnam and Afghanistan, "serious military losses" aren't really the goal of prolonged guerrilla warfare. The point is to send back enough dead and mangled bodies of young men that the folks back home start to question whether this is all worth it. By any conventional definition, guerrilla forces usually lose; by the definition of "getting the foreign army out of our country," however, they've been fairly successful in many places.

    The fact that nobody is trying to change the code regarding selective service is much more indicative of how political leaders in the US feel about women's capabilities than it is of how selective service and the unorganized militia are related to the Second Amendment. Also, I'm pretty sure fat people aren't exempt from the draft; if they are, the US is basically fucked.

    Actually, most guns are not registered when the background check is done. The Form 4473 is retained by the dealer, not by the government. New guns aside, though, I have four questions. First, how do you deal with the hundreds of millions of guns already in this country? Second, even if you did somehow manage to record every gun in existence in the US, what's to stop the same people who ship literal tons of narcotics into the country from throwing a few AK receivers on the pile? Third, how do you stop unlicensed arms manufacturers? Anyone with a half-decent metal shop can make a submachine gun; read up on the Sten gun for more. And finally, even if you did manage to control all that, what makes you think that someone who's going to use a gun in a (presumably violent) crime is going to be the least bit concerned about the possibility of a couple extra years on his sentence for not following the laws about registration? If you're already planning to murder someone, you're not going to stop because you don't have the serial number of your handgun on file.

  43. Arslan Says:

    More bad arguments. Let's do this by the numbers.

    1. The concept of psychological warfare as we know it today did not exist at the time of the revolution. People remember public fatigue due to the war in Vietnam because Vietnam was widely televised. People rarely remember that Americans were getting fed up with WWII around 1944-45. In fact, in the last days of the European war, this had a huge psychological effect on many soldiers which led to self-mutiliation, suicide, and desertion. Basically, even if you are fighting a conventional opponent and you know you are going to win, you don't want to be the last casulty in a war that's nearly over. All you know is that for some inexplicable reason, Hitler hasn't surrendered even though he's clearly lost the war, and at the same time you know that next German village might contain the fanatical Hitler Youth sniper or Panzerfaust-wielder that just happens to hit you.

    England didn't have to worry about public opinion regarding the war for the most part. Imperialism and colonialism were considered right and just, and there was no television, radio, or even a popular press. This is crucial because the psychological effect of the Tet Offensive centered around how the US miliary had repeatedly touted their high VC/NVA body counts and Westmoreland claimed that they had reached the turning point in Vietnam. Shortly after that claim, the Tet Offensive broke. The enemy that was all but wiped out at least appeared stronger than ever before.

    Anyway, that's another story. The British weren't defeated by a long protracted guerrilla war. They were defeated via more or less conventional means, on the battlefield. Besides, had you read your Mao, Giap, and Guevara, you would know that unconventional forces waging a protracted guerrilla conflict seek to organize and mature until that point at which they are able to engage the enemy in set piece battles. This certainly happened in China, Yugoslavia(near the end of the war Tito actually had tank units), and to a lesser extent in Cuba.

    2. There is nothing connection the Selective Service System with a militia, like for example the system in Switzerland. If being registered for Selective Service makes you potentially part of a "militia"(strange, because potential draftees might find themselves in the regular Army, Navy, USAF, USMC), and thus is the basis of the right to keep and bear arms as per the "well-regulated militia", then you MUST concede that women and possibly anybody not eligible for Selective Service, or anyone who might be registered but could not possibly serve in the event of conscription, are not covered under the 2nd Amendment and thus have no right to keep and bear arms. Try pointing this out at the next NRA convention.

    3. Clearly I might be mistaken on the subject of registration, because I have only been the customer. However, I thought that the information they give to the FBI includes the guns serial number. Are you saying the FBI doesn't retain any of that info? Perhaps they should.

    In any case, there are two problems with this argument. First, there are many ways to reduce the ability of criminals to get guns while not seriously infringing on anyone's rights. For example, if you want to buy guns, take a short course and get a license. When you want to buy, just flash the license and register the gun and voila. Local authorities can ask people to register their guns. Will everyone do it? Probably not. Could someone maybe sell a gun illegally? Probably. However, we clearly can't stop people from driving drunk, yet we haven't legalized that yet. This "someone will always find a way to break the law" argument doesn't fly, because it amounts to a false dichotomy.

    For example, you point out that someone with the right machine tools can make their own gun. Well that's true, but someone with fewer tools and less skill can create dangerous explosive devices. I guess we'd better legalize claymore mines now. Hell, every once in a while some hand grenades end up in civilian hands. I guess we should legalize them. I mean, what if my family in my home is under attack by a criminal armed with hand grenades? I would want my wife to lay down a suppressing fire with the Kalashnikov while I get within range, and toss a frag into the living room to take the bastard out. I get lay down a base of fire with firearms but I do not do assaults without grenades! It's my right!

  44. Arslan Says:

    Short version: No law or regulation in a capitalist society will totally eliminate the crime it is directed at. Part of the reason we have a criminal justice system is because we understand that we can make laws, but they will be broken. Indeed, in countries like the UK, there are criminals with guns. However, the homicide rate is much lower and what is more, gun crime is far rarer.

    I'm not advocating a ban on guns, only some common sense attempts to rein in some of the gun crime which occurs in the US. It is strange that gun rights advocates are so quick to tell us what won't work, and yet never have any suggestions as to what will work. If you don't like registration, WHY? Saying that not everyone would register their guns isn't an answer. If you have a better idea, tell us. If gun rights advocates are so concerned about guns being used legally and responsibly, surely they wish something could be done to keep more guns out of the hands of criminals. So what is their plan?

  45. bb in GA Says:

    As I get older, I really appreciate a "well regulated" digestive system :-)

    'The meaning of the phrase "well-regulated" in the 2nd amendment
    From: Brian T. Halonen

    The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

    1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

    1714: "The practice of all well-regulated courts of justice in the world."

    1812: "The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

    1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

    1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

    1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

    The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter.

    It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected.

    Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.'

    //bb

  46. Nick Says:

    The modern version of psychological warfare may be new, but it's been a part of conflict since societies evolved. Face paint, war cries, salting the earth, snipers, propaganda campaigns, all serve the same purpose. I'll admit to not having read Mao and Giap, but Guevara's writings, while historically interesting and containing some basic strategy that's still relevant, aren't entirely applicable to modern warfare, any more than Sun Tzu is the end-all of military strategy.

    Selective Service is the manifestation of the unorganized militia. They may not be directly related in law, but the code defining the militia uses the same criteria. As I said above, the code is outdated, but that has less to do with its applicability to the idea of a "people's militia" than it does with how politicians in this country view those frail, fragile women (i.e. a view that hasn't changed since at least 1913). For the record, I would also support a Swiss-style system in which everyone serves in the Guard or its equivalent; however, the lack of such a system does not invalidate the idea of a common, unorganized militia. As for draftees finding themselves in the regular Army, the "militia" is everyone capable of bearing arms in the common defense. The best way for them to perform in that defense is to be made part of the existing Armed Forces, but that doesn't mean that they're part of the standing army (i.e. professional soldiers), nor does it mean that if the standing army is rendered incapable of defending the nation, that citizens have no right or responsibility to take up arms.

    The FBI does retain serial numbers of every weapon made along with the make, model, etc. However, they do not retain ownership records of the weapon.

    If licensing and registration stopped solely at licensing and registration, I'd have less of an issue with it. Historically, though, anything the government keeps track of, the government controls. This is likely the point where you'll dismiss me as a paranoid gun nut, but I'd feel equally uncomfortable with registering ownership of radios, printers, etc. I don't like the idea of giving the government the means to quickly and easily restrict or rescind the means of exercising a right.

    It's interesting that you bring up the UK as an example, as gun-control advocates often do. The UK is the most violent country in Europe (http://www.dailymail.co.uk/news/article-1196941/The-violent-country-Europe-Britain-worse-South-Africa-U-S.html), even if a smaller portion is gun crime, and while they have fewer homicides than we do they have more violent crime per capita. Furthermore, the gun laws there are ineffective at best. The last major gun laws implemented in England came in 1996, as a response to the shock and outrage following the Dunblane massacre. These laws banned handguns entirely, along with all semi-automatic rifles and shotguns, and required remaining weapons to be registered and the shooter to be a licensed member of an approved gun club. In the decade that followed, handgun crime nearly doubled. But I'm sure the fact that they've banned children from Olympic shooting events will help.

    It's not just the gun lobby that says gun laws don't work. The CDC, after studying dozens of types of laws in place at the state, local, and national level, could find no evidence that any of them had an impact on gun crime. There are a few things I'm in favor of. Background checks, mental health checks (the system in place for the latter was broken for a long time, but thankfully is now improving), longer sentences for felons in possession of firearms, etc. Not to mention improved social programs and an end to the War on Drugs, which contributes more to violence in this and other countries than the most permissive set of gun laws. But blaming guns for violence is attacking a symptom while ignoring the disease.

  47. IR Says:

    Reminds me of the empty of appeal of "The founders never intended." Of course, the inevitable question from this is which founders? I can think of a founder that would probably be labelled a "pinko commie" or "socialist" by republicans today.

    Most of this is really a guise to try to label normative positions as descriptive facts.

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