Guiding Yes, Rigid No

(Posted by Alex)

Ok, I see where you are going, and I am not in complete disagreement with all the points you make- just most of them.

“I realize that you’re going to disagree with me on this point, but the answer is “We know how it’s been interpreted, and yes, it does matter today. Or it ought to, else the entire legal system loses its validity.”

I actually agree that we know how it has been interpreted, however I don’t see complete uniformity in those decisions. I pointed to the Miller case, not in an effort to cherry pick, but because it comes up as the most on point case by the Supreme Court in Thomson Findlaw. As they say:

“In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ”individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a ”states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.”

Now the court’s interpretation of the 2nd in Miller is pretty clear (although I think you read into things I did not- I’ll get to that later) and somewhat on par with my own. You disagree with this interpretation, and view it as a disregard for principles established in prior cases (although either not directly 2nd amendment cases or not Supreme court cases).

So, if when you say, “We know how it’s been interpreted”, you mean we have a detailed account of various interpretations (through both direct case law, and those that ruled on the principle more generally) I agree completely. But it isn’t of one mind, clearly, and if you start saying “well, I think they were just plain nuts in Miller (or any other case)- so I don’t count that as an ‘interpretation’” then I think “the entire legal system loses its validity”, as you say.

“That’s the major argument I have with you, I think, Alex. You’re willing to alter the meaning of written law (ignoring the rule of law) in order to get a judicial outcome you favor (thereby abusing stare decisis).”

Not true. First let’s cover Stare Decisis, and show the FULL meaning of that concept: I got this from the first entry that came up under Google for the term.

(I only say that to try to demonstrate that I am not cherry picking here, and although it is certainly an imprecise measure to be sure, it offers at least some indicator that it should be a somewhat popular definition of the term, given its high ranking. I just went with the first, presumably most popular link)

“STARE DECISIS – Lat. “to stand by that which is decided.” The principal that the precedent decisions are to be followed by the courts.

To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

An appeal court’s panel is “bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions.” United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).

Although the doctrine of stare decisis does not prevent reexamining and, if need be, overruling prior decisions, “It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . ‘is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'” (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law.”

The part that I think you forget is the “The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. ” part of the concept. Yes, the burden of proof is on anyone that wants to challenge a previous meaning or precedent- “rightly onerous” as the quote above says. But it emphasizes that this can, and must, at times be done.

Since you have quoted me extensively, allow me to do the same to show that I take the full view of Stare Decisis:

“The ONLY reason that the constitution is as powerful as it is that it is a living document- it adapts. Not willy nilly, “hey I am this kind of law now” type changes, but gradual, powerful change like a sea change.”

Granted, that is nowhere near as eloquent as “rightly onerous”, but it is directly on point. The “gradual, powerful change” is that rightly onerous task. So you accuse me of ignoring Stare Decisis, yet I think it is you that leaves out the fact that it does not preclude overruling, clarifying and modifying the law as time moves forward. The law, just as everything else, must progress.

“You’re interested more in outcome than in process

No, I am not. My process just includes a wider view than trying to unlock some objective/subjective unfailing meaning to a phrase that will somehow be fair and just in all cases from here to eternity, with no need to look at context, relevance, history and changes to society. Everything has a context, and when people put blinders on to that fact, they make less informed decisions.

I see attempt to criminalize flag burning as an example of this. I despise the act itself, not because it affects me so deeply, but because I see the affect it has on others, which is akin to burning a Bible, Quran or other sacred text to deeply religious people. The others that it affects most deeply often times have made great personal sacrifices for their country- making an attack on them an especially heinous act. Causing someone like that the type of pain you know they will suffer, when there are certainly other ways to make the same point, seems unnecessary and willfully cruel. Despite that, because the same law that protects my right to express my ideas also protects that foul act, I am against any attempt to criminalize that act. The outcome I’d like is that nobody burn a flag, however the process of keeping my freedom of speech demands that it be legal.

“Where you and I part company is on this topic, because you think it’s OK to revise the meaning of laws based on current conditions as a means of ensuring justice, and I think that doing so slowly destroys the rule of law and will eventually result in a collapsing house of cards.”

Again, this makes it sound like I am just saying “hey, just figure out what the law means today and run with it”. No. Just as historical precedence is no panacea for interpretation, neither is context alone. You need both. Yes, how that law affects modern life by today’s standard is applicable. But it alone does not say “throw out precedent and previous interpretation”. I believe in the complete idea of stare decisis- rule on precedent, overrule when the high bar for context demands it (usually when rights conflict with other rights and priorities must be sorted out). What will “eventually result in a collapsing house of cards” is clinging to rigidity in a hopelessly flexible world. Everything successful on this planet adapts or dies. Place great stock in history, but don’t get stuck there.

As for the Miller decision itself, I don’t see it the way you do, or the way you are stating that I do. I saw Miller as the case where they try to decide “what does the first part of the 2nd amendment mean”. They concluded that you couldn’t read the second part, without relating it to the first part.

“The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” (emphasis added)

And they don’t say that without any kind of reasoning from past documents (they weren’t ignoring stare decisis).

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (emphasis added)

They then also cite readings from Blackstone’s Commentaries, Adam Smith’s Wealth of Nations, The General Court of Massachusetts, The New York Legislature and The General Assembly of Virginia. In all cases they use these to support the idea of a militia being a regulated unit of citizens soldiers, and they highlight the training and formal nature of the group.

I understand your attachment to the first part of the ruling

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” (Emphasis added)

But the part I highlighted above “With obvious purpose to assure the continuation and render possible the effectiveness of such forces [referring to militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” stands on its own. Regardless of whether or not an adequate case was made for if a sawed off shotgun fit as a “common weapon” to likely be used by a militia (a point you have brought up before- but is entirely another issue), the main, fully independent, point here is that the Supreme Court finally looked at the full text of the 2nd and said you MUST relate it to militias and “It must be interpreted and applied with that end in view”.

So if you believe in Stare Decisis, and here we have the high court finally “resolving” the question of what the 2nd means in its entirety, how can you ignore that? They looked at the law, examined the amendment and reached a conclusion. It said “you have to interpret this law as a means to allow for militias- and no more”. Just because you think they got it wrong does that allow you to dismiss the entire case?

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