Tag: debate

Mr. Girsch, as noted elsewhere, has posted More on Race, Culture, Economics and Violent Crime, a response to my earlier piece, Culture, where, as he puts it,

I’ll just summarize what I think Kevin Baker is getting at (it kind of jumps around a bit, and is hard to summarize succinctly), and then point out where I think he gets it right, where I think he gets it wrong, and why.

(*sigh*)

I try to be clear. I really do. But with topics like this, there’s a lot of there, there, if you get my drift.

The title of this essay is taken from the Theodore Dalrymple piece I quoted in Culture:

Human behavior cannot be explained without reference to the meanings and intentions people give to their acts and omissions; and everyone has a Weltanschauung, a worldview, whether he knows it or not.

I’m going to try to illustrate that where Mr. Girsch and I differ is in our particular worldviews, and our worldviews color what we each see in dramatically different ways.

He writes,

Kevin’s essay isn’t likely to convince anyone not already inclined to agree with his conclusions.

thus insisting from the beginning that: A) my argument has little merit, and B) his argument is the only persuasive one of the two to those with a truly “open mind.”

Hubris, indeed, but to be expected. Mr. Girsch is, after all, one of the Anointed. (I do “snidely superior” pretty well when I wish, too.)

So, let’s take his counter-arguments and see if we can do something with them. As I’ve said before, I’d far rather have a discussion with someone who disagrees with me, particularly if they’re intelligent and well-informed. It forces me to defend my position, and I learn much more that way.

Mr. Girsch’s first disagreement: After quoting my statistics on black-on-black crime and the statistics showing that blacks are not disproportionally more poor than Hispanics, he concludes,

There’s a lot going on here, mostly a highly misleading use of statistics, but it boils down to three incorrect underlying assumptions:

1. That poor Hispanics are concentrated in inner-city areas at roughly the same rate as poor African-Americans are.

Hold the phone. I made no such attribution. I said that blacks and Hispanics suffer poverty at about the same level. No mention was made of where.

2. That poverty is poverty, with no differences in degree of poverty.

I noted that the statistics said (quoting the cited paper) “The poverty rate for Hispanics did not differ statistically from the rate for African Americans.” This, apparantly is “a highly misleading use of statistics.” Take it up with the Census Bureau. That was their conclusion.

And, finally,

3. That the relationship between poverty and violent crime ought to be linear.

So, throwing out the first argument on the basis of my never having made it, let’s progress to the second. Mr. Girsch says:

Have a look at these numbers, which break out income figures more granularly. According to these figures, 18.9% of Hispanic households in 2001 had incomes below $15,000 per year, as compared to 26.4% of their African-American counterparts. When you look at the very bottom end, household incomes below $5,000 per year, African-American households are two-thirds more likely than Hispanic households to fall into this destitute category. Looking at these figures, it’s pretty clear that African-Americans are considerably more likely to be among the poorest of the poor than their Hispanic counterparts. (Note, too, that in all races, these numbers are trending downward, despite predictions that the “welfare state” is worsening the matter.)

Um, Mr. Girsch, in a society in which welfare benefits are available to any and all who qualify, why are blacks deepest in poverty?

And this is where our Weltanschauung‘s differ, coloring how we see the world. As noted above, Hispanics tend not to live in the inner city, but are more rurally dispersed. Why? They choose to. Cost of living is lower there. The opportunity for work is greater there. Why do poor blacks remain in the killing-fields of the inner city?

CULTURE. “The Man” isn’t holding them there. (More on this later.)

In relation to argument #3, that “the relationship between poverty and violent crime ought to be linear,” I’m sorry, but isn’t that the argument? If “poverty causes crime” then shouldn’t the relationship be linear? You’re arguing that it’s exponential? Root-cubed? As I’ve seen it argued poverty=violent crime. But, as I myself have noted, that’s not the case. To wit:

The USA doesn’t have a significant violent crime problem, it has a significant INNER CITY violent crime problem.

Poor people outside the inner city don’t seem to have the same problems. Your worldview apparently says “Well, that’s because inner city blacks are desperately poor.” My worldview says “Well, that’s because the culture that keeps people in the inner city is the same culture that produces violent criminals.” And as an example of this, I provide Dr. Dalrymple’s example of the British underclass which is, as he explicitly states, majority white. And violent, but not homicidal.

I’m not arguing that the relationship is linear, exponential, or any other mathematical formula. I’m arguing that the relationship isn’t causal, at least as it pertains to crimes of violence. Yes, poor people are the victims and the perpetrators of more violent crime than wealthy people. That does not begin to explain why young black men die of homicide at a rate six times higher than the general population.

Somehow I don’t think we’re going to reach an accord on that point.

Continuing, Mr. Girsch writes:

And these are just the biggest problems with Kevin’s reasoning. There are others. For example, in the section I quoted above, Kevin includes Asians and Pacific Islanders in his statistics. But from his own 1997 source, we find:

In 1997, African American households had a median income of $25,050, lower than that of Asian and Pacific Islander households ($45,249), White households ($38,972) and households maintained by a person of Hispanic origin, who may be of any race, ($26,628).

Notice that Asians and Pacific Islanders well outpace Blacks and Hispanics in median income, and in fact, they even outpace Whites! So I’m not sure how including that particular minority helps Kevin’s case.

How does it help? Weltanschauung again. It illustrates that CULTURE is the overriding factor in how groups perform economically. It also is the controlling factor in criminal behavior. And culture is, very often, marked by racial characteristics – but not always.

David Hackett Fischer’s book Albion’s Seed: Four British Folkways in America details four distinct waves of immigrants from Great Britain to America. They were the Puritans from the East of England to Massachussetts between 1629-1640; the Royalist elite and their indentured servants from the South of England to Virginia betwen 1642-1675; the North Midlands English to the Delaware Valley from 1675-1725; and the Scots-Irish from North Britain and northern Ireland to the Appalachian frontier country from 1718-1775. All were caucasian, all spoke English, but their cultures were vastly different. So were their tendencies toward poverty and crime. Dress ’em up in t-shirts and bluejeans and you probably wouldn’t be able to tell them apart in a police line-up, except the Scots-Irish would probably be missing more teeth and have more (and more visible) scars.

My ancestry is Scots-Irish, if it matters.

For another example, a while back during a drawn-out discussion on rights here I pointed to the example of the Maori and Moriori illustrated in Jared Diamond’s Pulitzer-winning Guns, Germs, and Steel. The Maori and Moriori were both Polynesian peoples, almost definitely directly related to one another, but the Maori culture brought about the total annihilation of the Moriori culture, and it can be argued that the Moriori were far more poverty-stricken than the Maori.

Let’s continue. Mr. Girsch:

At one point, Kevin says:

It is no suprise that crime and poverty go hand-in-hand (though there’s a chicken/egg component there I won’t address at the moment.)

And shortly thereafter, cites this:

You need only do three things in this country to avoid poverty – finish high school, marry before having a child, and marry after the age of 20. Only 8 percent of the families who do this are poor; 79 percent of those who fail to do this are poor.

Talk about unaddressed chicken/egg components! Kevin continues to harp on illegitimacy for a bit, even while admitting that illegitimacy alone can’t account for the disparities. But are urban blacks poor because of the high rate of illegitimate births? Or is it that the poverty in large part causes the illegitimate births? I suspect it’s a bit of both.

I suspect it’s CULTURE. Let me repeat the pertinent Dalrymple quote:

In fact, most of the social pathology exhibited by the underclass has its origin in ideas that have filtered down from the intelligentsia. Of nothing is this more true than the system of sexual relations that now prevails in the underclass, with the result that 70 percent of the births in my hospital are now illegitimate (a figure that would approach 100 percent if it were not for the presence in the area of a large number of immigrants from the Indian subcontinent).

What’s the difference between the British underclass and the “large number of immigrants from the Indian subcontinent” that live in the same area, in the same squalor, and use the same Public Health system?

CULTURE.

Why is there a high rate of illegitimate births among urban blacks? Because their culture doesn’t discourage it. But Indian and Pakistani cultures do. Why are American Asians far less likely to have illegitimate births? Because they’re wealthier? No, because their culture makes illegitimate birth a great shame. I cited:

According to the CDC, in 2002 68.2% of births to black women were illegitimate, compared to 23% for whites, 34% for Hispanics and 14.9% for “Asians and Pacific Islanders.” Interestingly, for Puerto Rican women the illegitimacy rate was 59.1%, but for Cuban women, it was 29.8%.

Mr. Girsch noted in a comment that the illegitimacy rate for Hispanics overall was actually 43.5% (I believe I transposed the digits), but he apparently missed the comparison between Puerto Ricans (at 59.1%) and Cubans (at 29.8%) – almost precisely half. The cause of that disparity?

CULTURE.

Mr. Girsch concludes:

Of course, my objective here is not to prove to anybody that the social safety net is working or that it presents no burden to those it purports to help — that’s for someone else to do some other time. Nor am I trying to argue that there aren’t cultural factors in play — often prevalent in very poor, predominantly African-American urban neighborhoods — that exacerbate the problem of violence. I merely wanted to demonstrate that Kevin’s case is not nearly so slam-dunk as he (and his commenters) seem to think it is, and to point out what I feel are critical errors he made in building that case. I would argue that if he wishes to do away with the status quo, the burden of proof is on him to show that the alternative (little or no social safety net) would indeed be better.

Methinks he doth protest too much. My “critical errors” seem to be a reflection of his assuming I’m trying to “prove” something that I’m not trying to prove. Weltanschauung again. Let me repeat the comment I made that began this whole exchange:

There is evidence (scant, I admit, since no one seems to want to actually study the question) that black-on-black crime is related to the rise of the Welfare State, both here and in the UK. It seems to be an unintended consequence of trying to “help the disadvantaged,” and it is related to the destruction of the traditional family unit. Both countries share that problem. If the culture strongly supports the nuclear family (Asian, Indian-subcontinent, Pakistani, etc.) the problem of youth violence is greatly reduced. Here, the black culture does not support the nuclear family, and we end up with lots of fatherless boys. In the UK, where a lot of their black-on-black violence comes from Jamaican gangs, the same is true.

Where, in that statement, do I call for a dismantling of the Welfare State?

But I am, in his eyes, a Conservative; even worse, a Libertarian, so I must believe that we should destroy the Welfare State post haste and everything will then become a free-market utopia! After all, I’m selfish, and he’s caring. It’s not his fault the strategy didn’t work. The ideology cannot be wrong so it must have been “poorly implemented.”

‘Tain’t likely, McGee.

The “social safety net” we’ve built over the last sixty years or so is, in my opinion, very much like the “War on (some) Drugs™” that began in 1914. It is an example of government overreach in the name of DOING SOMETHING! to correct a perceived social problem. The results (some, though not all) were predictable, and predicted. The actions were unconstitutional, but popular. And now we’re paying the price.

And it’s too late to turn back. The price of the War on (some) Drugs™ has been a slow and steady destruction of the Fourth and Fifth Amendments, crime, corruption, overfilled prisons, misery and death. Leaving drugs legal would have resulted in… misery and death.

But making drugs legal now won’t repair the damage done.

The price of our “social safety net” has been, in my humble opinion, no improvement in poverty rates (by his own cited statistics 26.4% of African-American households have incomes below $15,000 and “African-Americans are considerably more likely to be among the poorest of the poor,”) and subsidization of life in squalor. Said subsidization, along with the destructive memes of the intellegentsia which have trickled-down to the underclass has resulted in the decay of the inner-city American black culture. What does welfare do to blacks (and the British underclass) that it doesn’t do to other cultures? Other cultures apparently work harder to get out of poverty. They don’t use welfare to stay exactly where they are. I said, very early on in this discussion,

They’re poor because they’ve been taught that the State will take care of them, cradle to (early) grave, no muss, no fuss, no effort.

What I didn’t add was and they’re receptive to that message. This is true for our black underclass, and it’s true for the white British underclass. Move out of the inner city? Why? You might lose your benefits. You’ll have to find a new place to live. Everyone you know lives where you do. Everyone you know thinks like you do.

There’s been no pressure to do anything different. The culture doesn’t impose any, and other cultures? Screw ’em. Why care what they think? You’re a victim. It’s the responsibility of the government to take care of you.

It’s what you’ve been taught. It’s what you believe.

And it’s killing your sons at a prodigious rate.

And perhaps – just perhaps – that is the pressure that is causing the changes I noted in Culture:

The culture of American blacks is the result of a history of abuse and manipulation that would make any group dysfunctional. We can discuss who’s at fault until the cows come home, but that won’t affect the problem. The reality of the situation must be faced, and it must be faced by the members of that culture. Having outsiders point it out won’t work. Bill Cosby, Barack Obama, and even the Reverend Al Sharpton are starting to point it out. The situation is beginning to show signs of improvement. Violent crime is declining, out of wedlock birth is declining. The proportion of married couples raising children is increasing.

And this is being accomplished largely without the help of Federal programs or academic studies.

The “social safety net” has been, since the beginning, a government-mandated ponzi scheme that depended on positive population growth. It’s also been a cash-cow that the government has milked dry each and every year. (There is no “lock-box” and never has been.) Since the beginning benefits were expanded, restrictions were reduced, taxes were increased. It’s typical behavior for government, for anyone who actually looks. If there’s money, spend it. If there’s not enough, find some more. A billion here, a billion there, pretty soon we’re talking real money. After all, the first job of the politician isn’t to uphold and defend the Constitution, it’s to get re-elected – and, as Mencken described back in the first part of the 20^th Century,

The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can’t get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods.

Weltanschauung again.

We in the “reality-based” community can see the pyramid collapse coming, but we’re also aware that the population is loath to do anything about it.

We can’t just shut it off. An entitlement mentality is now too deeply ingrained in all American cultures. Entropy has occurred. Shutting down the “social safety net” would result in disaster. But corrective measures? Certainly. They should be possible.

But only if and only when it is acknowledged that the ideology was wrong, and that will require a change in our CULTURE. Without that all we’ll get is more of the same, at best, or further escalation of failure.

(Post script: At the end of his piece Mr. Girsch stated:

A commenter was trying to make the case that people in general would be better off if they didn’t have to pay the taxes associated with supporting the social safety net, because they would have more money to invest in their future and the economy. I responded that history has shown us that most people would not invest it or save it or spend it wisely (and in so doing, I used some terminology which I frankly regret).

Regret? Why? Because you accurately and unmistakeably illustrated the Leftist Weltanschauung?)

I’m going to skip the “Few More Points” post because, at this point, it’s irrelevant to the legal question, and we’ve still not exhausted (a word chosen with care) that topic. This is where our differences are most stark, and for purposes of illustrating those differences, I must continue on this thread.

You said:

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.

But you quote FindLaw:

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.

I see your point. I disagree that Miller did what you claim. And I strongly disagree with the “living document” concept, as it negates the rule of law –

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.’

There are a couple of points I think you dismiss far too easily. The first is that the Bill of Rights isn’t just a bunch of laws dealing with, for instance, the sale of property between private parties, or regulations concerning the operation of motor vehicles. These were laws placed in the Constitution in order to limit the power of the Federal government from infringing or abridging the pre-existing rights of “the people.” All of us. The second is that, by going ahead and infringing on those rights under the “changed social conditions” excuse, we run the very real risk of destroying the Constitution and everything built upon it. You disagree, but I will attempt to illustrate why I say this, using examples.

The Bill of Rights is a set of rules that says “hands off!” But your “living document” philosophy says, “well, it meant that then, but it can’t mean that now. Things have changed.” I’ve illustrated that the Dred Scott decision (in dicta) and the Cruikshank decision (not in dicta) proclaimed that the right protected by the Second Amendment was the right to keep and carry weapons “for lawful purpose.” I said there were two cases prior to Miller that addressed the Second Amendment directly, and that Cruikshank was the first. The second was Presser v. Illinois (1886). Presser relied on Cruikshank as precedent. I’m not going to go into the history of the decision, please read it at your leisure, but this is what it said regarding militias:

We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: ‘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.’

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the ‘powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,’ ‘not surrendered or restrained’ by the constitution of the United States.’

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

In U.S. v. Miller the court waxed eloquent on who and what were the militia, and indeed they did say,

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.

But again, the court did not reject Miller’s motion to dismiss based on his membership in a militia (he was not a member.) And it did not overrule the legal holding in Presser that “the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

It has subsequently been interpreted to do so, however. Erroneously in my opinion (and others.)

If, as you claim, the Miller decision departed from stare decisis in order to “overrule cases that have been hastily decided or (are) contrary to principle,” I have to wonder at the fact that it mentioned Presser only in a footnote, and Cruikshank not at all. Neither case was quoted.

This is where we have to discuss bad law – judicial decisions made either weaselling around what the law said, or controverting the law in part or in whole. These decisions do occur – else there would be no need to dispense with stare decisis and overturn them – but what you advocate here isn’t, in my opinion, the “adaptation” of the Constitution for the greater good, but the revision of law “contrary to principle” by the courts, thus bypassing the legislatures and “the people.” You cheerfully put that power into the hands of what I called “black-robed oligarchs.” And I meant it.

The Miller decision is the textbook example of the Supreme Court weaselling its way out of a tight spot. The 1934 National Firearms Act was debated heatedly in Congress, and there is a lot of historical documentation of its genesis. One of the things considered was the banning of handguns, since then as now handguns were the “weapon of choice” of criminals. This provision was either never formally added or later stripped because even in 1934 our Congresscritters understood that banning guns was a violation of the Second Amendment, and more importantly, a lot of good people owned handguns and wouldn’t vote for them in the next election if they tried it. Congress also understood that the Second Amendment was pretty explicit on the “shall not be infringed” language, but the Constitution also had the “commerce clause,” and Congress believed that using that excuse they could pass the 1934 NFA as a “revenue measure,” even though it was really a gun control measure.

The 1934 NFA was the result, in part, of one of America’s greatest brain-farts, Prohibition, but at least there we went through the legal exercise of amending the Constitution according to its rules. The ’34 NFA was an attempt to regulate and control the weapons of criminals – specifically those involved in bootlegging: fully-automatic weapons, short-barreled rifles, short barreled shotguns, and suppressors (silencers.) Congress tried to make this legal not by simply banning these weapons and accessories, but by taxing them – and establishing a registry (so that they could track the transfer taxes, of course.) Note that they didn’t try to do this to all weapons, just these specific guns used by the more notorious criminals in the more spectacular crimes. Of course, Prohibition was repealed (and most of the violent crime associated with it disappeared) in 1933, so one could be cynical and say that the real purpose of the ’34 NFA was to keep employed all those Revenuers who now had a vastly decreased workload. It was a pair of Revenuers who arrested Miller and Layton while investigating what they hoped was an illegal still, but all they found was Miller’s sawed-off shotgun.

In the mid-to-late 1930’s (the height of the Depression) FDR was shoving a lot of legislation through Congress, and much of it (in my opinion and in the opinion of a lot of other people) violated the Constitution. FDR was severely put out by the Supreme Court overturning the legislation he backed on Constitutional grounds so much that in 1937 he threatened to “pack the court” with judges who would see things his way (rather than the Constitutional way). FDR believed, as you do, that changing or circumventing the Constitution was necessary in order to adapt to the times. He just did so without using the rules written into it. He played upon public fear and anger to accomplish this, coercing the Court into backing down, instead of using his oratorical powers to convince the public to amend the Constitution (which I believe he probably could have done, but didn’t want to wait for.) This is an entire topic unto itself, but it’s necessary background.

Here’s background on the Miller case that’s important to understand so that you can place this very important case in its historical context. Some excerpts from this excellent source:

On September 22, 1938, the Fort Smith, Arkansas, Southwest American reported that “Jack Miller and Frank Layton of Claremore were re-indicted on a charge of transporting a sawed-off shotgun from Claremore to Siloam Springs last April 18.” Both Miller and Layton had originally pleaded guilty upon their first indictment, but Federal Judge Heartsill Ragon suggested they withdraw their plea and appointed a lawyer to represent them. In the ensuing arguments, Judge Ragon sustained the lawyer’s demurrer to the indictment, holding that the National Firearms Act of 1938 was unconstitutional. The prosecution then appealed the case to the Supreme Court.

The actual demurrer filed by Paul Gutensohn, Miller & Layton’s lawyer:

Come the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as National Firearms Act, approved June 26, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved by the States of the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: “A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;” that the said “National Firearms Act” is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) and Section 1132 (j) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the statutes of the United States.

5. That the indictment charges the defendants “not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132(c) and section 1132(j) Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26, 1934”; that said Section 1132(c) and Section 1132(j) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer of said firearms by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the statutes of the United States.

And Judge Ragon’s entire decision:

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, “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.”

The demurrer is accordingly sustained.

Now, I don’t know about you, but I find it fascinating that this case bounced directly from the Western District Federal Court of Arkansas on June 11, 1938, right past the 8^th Circuit Court of Appeals (where normally it would have gone through a three-judge panel, and then possibly an en banc re-hearing before proceeding), directly to the Supreme Court. The appeal was filed January 30; the Court rendered its opinion on May 15.

Breakneck speed, don’t you think? And I find it even odder that the Court heard only the Government’s side, since no one represented Miller & Layton.

Now, given all that, the question is “why the urgency?” And second, what did the Supreme Court actually decide? As I’ve said, the 9^th Circuit has declared that the Miller decision means the Second Amendment protects only the State’s right to a militia. The 5^th Circuit disagrees. And here we have an example of how this is supposed to work.

Dr. Timothy Joe Emerson was charged with violation of section 922(g)(8) of the U.S. Code. The Federal District Court found that said section violated the Second Amendment of the Constitution. That decision was appealed – not to the Supreme Court, but to the 5^th Circuit. The 5^th Circuit reversed the lower court, but still we have a split between circuits, and the 5^th Circuit’s U.S. v Emerson decision is very interesting to read as it does an “original meaning” analysis of the Second Amendment and it examines U.S. v Miller in detail.

Here’s the pithy part of the decision with regard to Miller:

The Court notes that several other federal courts have held that the Second Amendment does not establish an individual right to keep and bear arms, but rather a “collective” right, or a right held by the states. However, the only modern Second Amendment case from the Supreme Court is United States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller’s argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with Justice McReynolds writing the opinion. Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” And “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.” Thus, Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. Justice McReynolds went on to describe the purpose of the Second Amendment as “assuring the continuation and rendering possible the effectiveness of [the Militia].”

It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, thus might turn on the usefulness of such guns in military settings.

Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction.

Emerson was appealed to the Supreme Court, and was denied cert. That decision stands as written in the 5^th Circuit. Now, the part you’d probably be interested in regarding Emerson is this:

The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.

This is something crucial to understand in this debate. It is legal to restrict the right to arms – on an individual basis and under due process of law (said process in this case being met, according to the Court, “albeit likely minimally so.”) However, allowing the ’34 NFA to stand has put us on “the slippery slope.” (Hey, you can use “living document,” I get to use “slippery slope.”)

I said I would illustrate the problem of the “living document” method using examples. Example 1 is Miller – and the subsequent destruction of the protection the Second Amendment provides for the individual right to arms in the 9^th Circuit. We go from having a right to “keep and carry weapons” wherever we go, so long as it is for “a lawful purpose,” to not having any individual right at all (if we live in the 9^th Circuit.) Another example, and an even better one at that, is Kelo v New London, since it happened much, much faster and more innocuously.

Kelo is the result of two precedent-setting cases, Berman v. Parker (1954), and Hawaii Housing Authority v. Midkiff (1984). As we know, Kelo basically destroyed the “takings” clause of the Fifth Amendment, which reads:

…nor shall private property be taken for public use, without just compensation.

Prior to these three decisions the “public use” clause was understood to mean “for use by the public,” e.g., roads, parks, railway easements, etc. With Berman that meaning was expanded to allow the taking of property for commercial development but only if said property was in “blighted” areas, and only if there was an “integrated plan” for the use of the property. The Midkiff decision said that it was perfectly legal to take unblighted land for redistribution to the tenants upon it. It was a short hop to Kelo which said that it was A-OK to take unblighted land without an “integrated plan” and give it to developers because doing so would be a “public good” by increasing property tax revenues.

Had the Court in Berman held that the taking of non-blighted property for commercial purposes was in violation of the “takings clause” we’d (probably) never have gotten the Kelo decision, but given stare decisis it is unsurprising that “many members of the court” that you “personally admire” found as they did. But they shouldn’t have. This is a perfect example of when stare decisis should be abandoned because to do otherwise would run “contrary to principle.”

Julian Sanchez wrote a piece in the June 30 online issue of Reason entitled A Heap of Precedent. He makes a very pertinent point:

There’s a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don’t constitute a “heap” of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn’t a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you’re pushed to the equally absurd conclusion that 100,000 grains aren’t a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It’s not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like “interstate commerce,” “public use,” “unreasonable search,” and “cruel and unusual” are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court’s interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an “attitude altering slippery slope.” Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough — the differences from case to case sufficiently subtle — plausible distinctions become harder to find.

From Berman to Midkiff to Kelo seems to me to be a very short, and very grainy example of the slippery slope. Sanchez also notes in his piece:

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they’re engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That’s not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed, it’s a sign that jurists need to be willing to step back and see the heap.

And here’s where I hope we can conclude this portion of the discussion on the law. As I quoted before, Antonin Scalia has said:

To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don’t really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.

Some 25% of adults in this country own a firearm. Guns are in about 40% of all homes. When gun control laws go on a ballot they most often lose, and usually badly (“Yes, I support more effective gun control, but not THAT!“). The public, a large portion of it, possesses an abiding belief that the Second Amendment protects an individual right to arms. We believe that the right can be restricted, on an individual basis, after due process of law, but we really do believe in that right. Some who believe in that right identify themselves as liberal, and many who believe in that right don’t even own guns. Laurence Tribe, professor of law at Harvard, noted and self-described liberal, and author of the textbook American Constitutional Law used in most ConLaw classes today wrote this in that text:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

He believes in the individual right to arms too, and does not consider it outdated.

Because the gun control movement has failed to change that abiding belief enough to pass popular gun control legislation, they have attempted to use the courts to force the issue – to “legislate from the bench” as it is termed. They’ve had little success, but what they have accomplished is a reduction in public respect for the courts. They’ve had a lot of help. The Kelo and to some extent Raich v Gonzales cases are just the more egregious examples.

Sanchez said “…when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed…, I think he missed something that I accused you of earlier – the desire for outcome over process. Had Berman been decided holding to the earlier understanding of “public use” we wouldn’t be where we are today. Had Midkiff reversed (or at least not extended) Berman, again we would not be where we are today. Vast areas of D.C. might still be “blighted,” and vast tracts of Hawaiian real-estate might still belong to the original owners, and that might not be the most ideal outcome, but no one would fear that their house or business might be taken from them because the town they live in wants more property taxes.

What you advocate risks public disrespect for law. A lot of people do not see government as benevolent, but as a necessary evil. I am one of them, and there are many, many more like me. Albert Einstein once said, “The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure.” The “living Constitution” concept, by doing an end run around public opinion, harms this determination. Following the letter of the Constitution, even when it gives results we don’t like means that public opinion will grow and change and bring about revision of the Constitution to meet our changing needs – revision carried out using the mechanism designed into it, else we don’t really need to change it. We can still make mistakes this way; Prohibition proves that, but we will make mistakes at a much slower rate. But judicial activism – violating the Constitution because it just doesn’t meet today’s needs – slowly destroys our respect for law.

The Constitution is there to protect the rights of the minority. It has been abused, but the “living document” philosophy will result in its rot and corruption from within.

The Second Amendment to the Constitution protected a pre-existing right to arms. The exact scope of that right has never been determined, but at a minimum it protected the right to keep and carry weapons of military usefulness “for a lawful purpose.” If you believe that, then no law passed by the states nor Congress can repeal that right, and any attempt to do so will result in wholesale disregard for the law. And the right to arms is far from the only right under attack in this manner.

(Pardon me if you find any typos. I haven’t got the time to edit this piece thoroughly.)

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Note: Alex never responded to this post, and I have never heard from him again.

A few More Points
(By Alex)

Since it sounds like we are both rapidly losing the luxury of “free time” to be able to post a lot, I thought I would bring up some of the other items of debate that have been discussed in the comments. (I am not doing this to derail our discussion of the legal definition- I will continue to respond to that discussion as we proceed, I just feel I am running out of time).

The Industry

I maintain that the gun industry as a whole uses the 2^nd as an excuse to fail to properly police itself to limit the flow of guns to criminal users (without limiting the right of citizens to own and use weapons).

One statistic I found is from a questionable source, the Brady Center, so I am naturally suspicious of its authenticity. (I would be equally suspect of NRA figures not otherwise corroborated) I tried to verify it on the ATF site, but I could not find it. Certainly this doesn’t prove it is true or false, but those with other sources may be able to indicate whether or not it seems reliable. (For now I will just classify it as unverifiable from a source that has been known to play fast and loose with figures)

“Indeed, ATF data reveals that, nationwide, just 1.2 percent of current dealers account for 57 percent of successful crime gun traces. Despite the availability of this information, no gun manufacturer has attempted to identify, question, correct, or terminate these dealers who are the most prolific sources of guns used in crime.”

If that number is true (or within say, a factor of ten- lots of room for error there allowing for the source) then why would the industry not do more to rid itself of that 1.2%? You get data back saying “One of your distributors is making sales where the guns seem to end up in the hands of criminals at an alarming rate”. Everybody else has a low rate (they would have to if only 1.2% had the majority of traceable guns associated with crimes). So make the non-conforming dealers either clean up their act, or get booted. No additional legislation here. No infringement on the right to bear arms (regardless of how we interpret the 2^nd).

Stores across the country have voluntarily put in place measures to try and prevent the easy, bulk purchase of critical ingredients for making meth. They place the Sudafed (etc.) in a secure place, they may limit how much you can purchase at one time, the age you must be etc. This, clearly, will not eliminate the production of meth, and products such as cold medicine should remain available for the people who need them. What they did recognize was a responsibility not to make a bad problem even worse, and takes steps to try and curtail their impact on the problem. The gun industry should do the same, all on its own (without being forced), simply as a measure of corporate responsibility

Straw Buyers and Large Volume Purchases

This dovetails off the first point. You cannot argue that, even if you interpret the 2^nd to mean “any individual can own guns”, somehow the 2^nd amendment prohibits placing a limit on how many guns a person can purchase at one time (or in a fixed time period like a month). Allowing someone, as in the case of Williams v Bemiller, MKS et. al, to purchase 87 guns, pay cash, and step aside to let his girlfriend fill out the papers, is not a “right” guaranteed under any provision of the constitution. You have the right to arms (under that interpretation) but not to an unlimited quantity of arms. Limiting the purchase of handguns to, for instance, 1 per month does not stop any lawful citizen from exercising their right to obtain arms. It also doesn’t preclude the collection of multiple arms, over time, or the assembly of a cache of weapons (I would argue that even under the “you have a right to arms” interpretation of the 2^nd, it doesn’t guarantee that- but let’s say for the sake of argument that it does). All this does is remove the privilege of rapid assembly of, say, 87 Saturday Night Specials. Why not limit the number that can be purchased, since this case showed the damage one trafficker has on a population (10,000 traceable guns recovered in crimes from one dealer- that figure is truly stunning- how could they remain an authorized dealer?)

The case also demonstrated the willingness to look the other way for obvious straw men purchases. If the first point I made about the industry policing itself were followed, and the second point about the limits on numbers of weapon purchased within a time period, the straw man approach would become much less effective and, presumably far less prevalent. A panacea, no. But a start in the right direction, unquestionably.

Make them Safer

As soon as you start to mention safety measures that would help prevent accident, you usually elicit a “just follow proper safety procedures” or “there is no need for mechanical doodads on my gun”. This is like telling the victim of a car accident (and I apologize that this example hits home in your case- it just is the most precise way I can make this point) “just drive safely and you don’t need things like a seatbelt or airbags”. Accidents, by definition, happen when either things are out of our control, or people, for whatever reason, do not act in a safe manner.

If we know that people get injured or killed because someone fires a weapon they mistakenly believed to be unloaded after taking out the clip, then what is the rationale for not putting in a mechanism for preventing that from happening. Yes, the person who pulls the trigger without intending to destroy whatever they are aiming at (or pointing at as the case may be) has broken the cardinal rule for gun safety. But people are still stupid enough to do it, and (usually teens I would speculate) someone pays the price for that stupidity. Just as I may need my airbag to protect me from the poor driving of another, my kid may need that safety measure to keep from being a victim of the “I didn’t know it was loaded” stupidity of another. And, like everything else I mentioned, it doesn’t abridge any actual or perceived rights granted by the 2^nd.

Similarly, the manufacturing of weapons should be subject to the same oversight that consumers get for all other mechanical products. They are tested and analyzed to see if they pose a risk to a operator using them as directed under reasonable conditions. This does not mean they would find “Hey, these things kill people- therefore they are unsafe”. It means if a particular manufacturer made a weapon in a way that became dangerous or unpredictable when used as directed, then they would have to modify the production and/or recall the existing sold units. Just like everything else. Not an end run to declaring all guns unsafe, just a quality control, consumer protection measure.

There’s a lot more ground I’d like to cover, but this probably wraps up my contributions for the day (possibly for a while- but I will try to get back at least this week).

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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 2^nd 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.

http://www.lectlaw.com/def2/s065.htm

(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 2^nd 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 2^nd 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 2^nd 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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[snarkmode=”OFF”]

Now that we’ve hurled about 15,000 words (each) at each other and gone essentially nowhere, let’s reset to (nearly) zero and start over. I believe this is necessary because until we hash out this particular topic we can’t get any further. As the Constitution and Bill of Rights are the foundation of all law in this country, an understanding of the Second Amendment as a law is the foundation of any discussion regarding gun control.

I am pressed for time, however, so I will attempt to keep this uncharacteristically short (and probably fail).

The opening question in this discussion was: “What did the Second Amendment mean when it was ratified, and does it matter today?” You answered “We don’t know” and “no it doesn’t.”

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.”

We know how it’s been interpreted because it was discussed in detail in very well recorded historical documents, and it has been brought up in a number of legal cases beginning not too long after it was ratified. These cases concern the “right to arms” generally, or the Second Amendment to the Constitution in particular, or speak of it in passing. Some of these cases deal with the right to arms in obiter dictum, but many address the topic directly. Twice already I have referred to the rule of law and the principle of stare decisis. If you want an analogy, these ideas are the brick and mortar of our legal system, and the structure we’ve built up to today is pretty damned shoddy, bordering on dangerous because of the tendency to ignore the rule of law and the abuse of stare decisis.

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). You’re interested more in outcome than in process. I say that because of these quotes:

Relying on someone’s personal beliefs from 1787 as the basis for governance in a modern society is a recipe for disaster.

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It’s not a “cop out” to admit that we are all just making this up based on whatever limited information we can find and shaped by our own experiences now.

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And yes, the same words can have different meanings over the course of time.

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But if you can’t recognize that the same word can have different meanings, and that the meaning may evolve over time, again you are clinging to an idealistic past that never existed that way in reality (where there was no ambiguity or struggle with definitions whatsoever- everything was just absolutely defined).

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First my allegiance lies to my country first, above any document (even the constituion). And those that would have it backwards (exalting any document above the good of the nation) ultimately do more harm than good in the long run, as they fail to see the big picture. They are so intent on “preserving” their own ideal of “what this document means” that they ignore the 200+ years of history, progress, case law, advances and changes society has undertaken since. But let’s just say “hey, these flawed human beings in the 1700’s got everything right, so let us all just reside inside their heads forever”.

We rely on what was written into the Constitution every day. So far we’ve (narrowly) held off disaster longer than any other democratic form of government in history. The information you characterize as “limited”? It’s quite voluminous. And while it may not tell us precisely what the laws written meant (else we wouldn’t need a judiciary to interpret it), it most definitely tells us what those laws did not mean. 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.

You are insistent that the militia clause of the Second Amendment is a modifying clause, restricting the right to arms to be in connection to that militia. From this, then, it is justifiable to you to restrict non-militia gun ownership, use, and/or possession. We can discuss the details later, but I’m going to assume I have understood this correctly for the moment. This is the position of the gun control groups – all of them – and it is also the position taken by most of the various Federal Courts of Appeal in stronger or weaker amounts. They take this position based on an interpretation of the one most recent Supreme Court decision dealing with the Second Amendment, which you cited; U.S. v. Miller, (1939).

However, I challenge you to find Supreme Court cases prior to Miller that interpret the Second Amendment in any way other than as a law protecting the right of individuals – without mention of militia service – to keep and carry their own personal weapons. Even Miller did not. Miller, at its worst, has been stretched by the 9^th Circuit Court of Appeals to strip the individual right to arms from everyone living within its reach. That includes me, as I live in Arizona. That was the purpose of my quoting 9th Circuit Justice Kleinfeld’s dissent from rehearing Silveira v. Lockyer. The pertinent excerpt:

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.

Two Supreme Court cases prior to Miller involved the Second Amendment directly. The first was U.S. v. Cruikshank (1875). It ought to have been one of if not the first of the “incorporation” decisions that expanded the protections of the Bill of Rights to all citizens in the country against usurpation by State law under the umbrella of the 1868 14^th Amendment’s “privileges or immunities” and “equal protection” clauses. Unfortunately, it was not. It was a product of its time, as well. The 14^th Amendment is quite clear as to its purpose in this regard as is the documentation regarding its writing and passage, but the Supreme Court decided that it couldn’t mean what it really said even though the Justices were contemporary with the lawmakers who wrote and passed it.

Here’s another excerpt from Scott v. Sanford:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?

Here’s the first paragraph of the 14^th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Here (again) are what the Scott court listed as some of those “privileges and immunities”:

(Citizenship) would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Here’s what the Cruikshank decision had to say on the topic of the right to arms:

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

In 1875 the Supreme Court stated, not in dicta, that the Second Amendment protected a pre-existing right of “bearing arms for a lawful purpose.” No mention is made of a militia. No militia is involved in the case at hand. But the Court proclaimed that the Second Amendment only protected “the people” from infringement of that right by Congress – the States were free to infringe to their heart’s content. This case is the reason that Chicago and D.C. are free to ban handguns, but Vermont allows unpermitted concealed-carry, although everyone who buys a new gun must buy it through a federally licensed dealer and fill out a federally-mandated BATF form 4473 and undergo a background check.

Please understand this: as late as 1875 the Court recognized, as it did in Dred Scott in 1856, that the right the Second Amendment protected was the right to “bear arms for a lawful purpose,” to “keep and carry arms” wherever we go. No other restriction was mentioned. That’s established law. Miller did not narrow this decision. Read it carefully. Miller simply said that the weapon in question could not legally be recognized as being suitable for militia use, and it remanded the case back to the lower court for finding. The Court did not, as the 9^th Circuit and others have interpreted it, reject Miller and Layton’s right to arms based on the fact that they themselves were not members of a militia, even though the U.S. Attorney so argued. The question the Court considered was whether the 1934 National Firearms Act that required: a) a background check; b) approval in writing of a local head of law enforcement; c) photo ID; and d) payment of a $200 “tax” (in 1934 dollars on what was, after all, a $5 shotgun) was an infringment on the right of individuals to keep and bear arms. Arms, that is, suitable for military useage.

They said they were unable to reach a conclusion for lack of evidence.

(P.S.: If you have not, may I recommend that you dig into the Cruikshank case – not just the decision, but the acts that precipitated the case. If you think the Kelo decision was bad…)

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Agreed (by Alex)

Sounds good Kevin. For the record my first post was 100% “snark-free” (go back and check for yourself), and after our first exchange, I took the gloves off as I figured you had done the same. But, despite the common perception here, no- I don’t have to be a wiseass to write (although I did love the reactions it generated).

So, for all future posts, I will respond in kind. Forthright argument will be met with forthright argument, snark with snark. Your site- you drive.

I’ll let you respond to the comments when you get the opportunity. I had more to write, but it’s only fair to let you respond first. My time is growing short here as things begin to pick up for me at work next week, and will likely be hell for at least the month of September. But I should be able to carve some time out at least in the next few days to post a few more replies.

Here’s That Cartoon.

I referred to a cartoon in an earlier post, and I thought it might be a good idea to actually put it up. It’s done by Kevin Tuma:

Pretty damned accurate from my perspective, though both parties are using more than just the axes shown.

Anyway, I’ve just started work on my reply to Alex. Expect to see it tomorrow sometime.

Bring popcorn.