Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. -- MaxedOutMama

I don't just want gun rights... I want individual liberty, a culture of self-reliance....I want the whole bloody thing. -- Kim du Toit

The most glaring example of the cognitive dissonance on the left is the concept that human beings are inherently good, yet at the same time cannot be trusted with any kind of weapon, unless the magic fairy dust of government authority gets sprinkled upon them.-- Moshe Ben-David

The cult of the left believes that it is engaged in a great apocalyptic battle with corporations and industrialists for the ownership of the unthinking masses. Its acolytes see themselves as the individuals who have been "liberated" to think for themselves. They make choices. You however are just a member of the unthinking masses. You are not really a person, but only respond to the agendas of your corporate overlords. If you eat too much, it's because corporations make you eat. If you kill, it's because corporations encourage you to buy guns. You are not an individual. You are a social problem. -- Sultan Knish

Wednesday, August 31, 2005

Please Give.

As I write this, I'm waiting for the Salvation Army's secure server page to load so that I can donate toward disaster relief. I'm taking the slow loading as a good sign that their servers are overloaded by other people doing what I'm attempting. For reasons I won't get into, I'm not a big fan of the Red Cross (as always, YMMV) so I want to give to organizations that I believe are trustworthy and will use the money well. The Salvation Army seems to me a good one, but by all means pick your own. They are myriad.

(Whoops! Server timed out. Gotta try again...)

If you've been near a radio or TV or on the web in the last couple of days, I know you know that tens of thousands of families are now homeless, jobless, and quite probably possess only that which they can physically carry. These aren't people in some third-world country on the other side of the planet, these are our fellow citizens (who probably dug into their own pockets for the victims of the tsunami just a few months ago.) These people need our help. They've got next to nothing. Anything helps. There's a couple hundred million of us. No need to give 'till it hurts.

Just give 'till it twinges a bit.

(Server timed out again. Guess I'll try the old-fashioned way. I'll use the telephone.)

UPDATE: Phone lines were overloaded, too. Finally got through via internet.

UPDATE, 9/1: James Lileks today:
FEMA’s list of charities is here. Note anything about what sort of organizations are doing the hard work? I keep looking for the Objectivist Mutual Aid Society, but it never pops up.
Of course not. The free market is supposed to take care of all that. The root of all evil is altruism, you know. See what I mean about James's sense of humor?

Tuesday, August 30, 2005

Sweet. Bleeding. Jeebus.

Pseudo-anonymous commenter "a new mexican" links to this AP story, and the commentary attached:
Wal-Mart shooting was first under concealed carry permit

A fatal shooting at an Albuquerque Wal-Mart last week was the state's first by someone with a concealed-carry gun permit, authorities said.

Police said Felix Vigil was attacking his ex-wife with a knife near the store's deli counter where she worked when an armed customer intervened and shot him. The woman, Joyce Cordova, was treated for multiple stab wounds and later released from an Albuquerque hospital.

The armed customer, 72-year-old Due Moore, was interviewed after the shooting last Thursday and released.

Police spokeswoman Officer Trish Hoffman said it appeared the shooting was justified. However, it will be up to the district attorney to decide whether Moore, a volunteer with the police department's cold case unit, will be prosecuted.

Moore could not be reached for comment.

New Mexico allows citizens age 21 and over to carry concealed weapons if they complete firearms training and pass national and local criminal background checks.

Moore's fatal shot was the first fired by someone with a permit, according to state Department of Public Safety spokesman Peter Olson. The state has issued more than 3,100 permits since the gun law went into effect Jan. 1, 2004.

Moore took a class to get his permit just 13 days after the law went into effect, said Cody Patton, a manager at Calibre's National Shooters Sports Center in Albuquerque. That's where Moore was certified.

"He was the fourth person ever to sign up for a permit," Patton said. "I've now done more than 300 of them."

Patton said there has been a fair amount of interest in concealed-carry permits at his range _ in particular during the first four months after the law passed.
I'm not going to quote all (at present) 61 comments, just the two that illustrate just how far out there the anti-gun people can be. First, from "Rita Serrano":
What a bunch of gun happy loons. Just what we don't need is kooks carrying guns shooting and killing other nuts in the deli of the grocery store.

The shooting may have been justified but not killing the man because under the law, the penalty for stabbing your ex-wife is not death.
There's someone who's a member of the "reality based community." Rita? It's called "lethal force" for a reason. And the proper response to lethal force, is (surprise!) lethal force!

But this one really pushes my buttons. Meet Jay Raymond, stereotypical GFW:
Moore should be charged if only for lawmakers to see that their idea of adequate self defense can quickly move to vigilantism when the gun holder's perception allows zero legal and moral responsibility.
Obviously Mr. Raymond is not too familiar with a dictionary. "Vigilantism" is not what Mr. Moore exhibited. The legitimate use of force in the immediate defense of self or others is not limited to law officers.
Absolutely no one here knows squat as to whether an innocent life was saved or not. Turns out, an innocent life was not saved (as defined under the law). Whether threatening with a knife (not a capital offense) or with a cannon . . . when someone without adequate police training chooses to shoot to kill (as opposed to talking down or disabling), or disregards law enforcement and statutory protocols delivered into law since the days of Wyatt Erp, we are watching society break down.
Err, what? "An innocent life was not saved?" What, Vigil was just kidding when he was stabbing his ex-wife? That's not "threatening", that's attacking. And the use of lethal force in the defense of another is perfectly legal - whether you're a cop or Joe Average. Everyone was supposed to wait until the cops showed up? Kitty Genovese all over again? Thank you, no.

And, of course, we get the obligatory "adequate police training" canard - from someone who has probably never pulled a trigger in his entire life, and believes that cops shoot to "disable." Perhaps he missed the recent incidents in which police officers fired ridiculous amounts of ammo - at least 103 rounds in Pittsburg, over 70 rounds in San Antonio, 120 rounds fired in Los Angeles. Yes, all those shots were fired to disable, don'tcha know? And every one was fired by a highly-trained police officer. And those are just the most recent examples. I've got more. This is the model GFW who believes that only people who draw a government paycheck can be trusted with a firearm. I've never understood that mentality.

But wait! There's more! (Isn't there always...)
That the egos of some are so swollen from Yosimite Sam Syndrome to even dare suggest that this form of vigilantism in any way protects the whole of society or should even be tolerated for gun licensees who's responsibility, within obtaining the permit, should be limited to SELF DEFENSE ONLY, bespeaks not only arrogance, but lunacy.
Mr. Raymond expands on his "only government employees are qualified" mantra here, since I'm certain that he'd be A-OK if an officer shot someone who was attacking him. But what really waxes my ass is his insistence that coming to the aid of another is vigilantism. Arrogance? Thy name is Jay Raymond.
This law stinks to start with, but what moron shoots to kill when a shot into the ceiling, or failing that, a shot to the foot would have likely stopped this situation.
"This law" is the same law now in force in what, 43 of our 50 states? But it offends Mr. Raymond. Too bad.

No, Mr. Raymond. You shoot to stop. If you have to pull your gun and fire, then lethal force must be justified. Shooting into the ceiling? What if it ricochets off of a structural member and strikes an innocent? Shoot for a foot? Can you hit a small moving target under stress? Even if you hit it, a foot won't stop the round. Where does that bullet go? No. You shoot for center of mass, just like you practice. Two to the chest, assess, and if necessary try for one to the head. Be aware of what's behind your target, and watch the front sight. And keep shooting until you're empty, or the threat is over.

Only morons fire warning shots or shoot to wound.

Shoot to stop, not to kill. If he dies, he dies. It was his choice to start the attack, your duty to end it. Not vigilantism, Mr. Raymond, duty. The duty of a citizen. A duty you not only shirk, but denigrate.
Moore may have had itchy finger, based on his certification timeline and disregard of logic in his approach to killing this guy. What if his own sanity and judgment is in question? The certification doesn't allow for professional psychological assessment (which should be mandatory), but merely relies on criminal records of past to determine whether "Bubba" moves to the training level.
From the fingertips of someone who most probably has a pathological fear of weapons. The "itchy trigger finger" meme. How original. Yes, everyone who carries a handgun for defense is just itching to kill. We really look forward to all that time spent with the police, our lawyer, the nearly inevitable civil lawsuit that will cost thousands. Yup. Each and every one of us is just a Travis Bickel underneath it all.
Hairless turbo-monkeys . . . with guns and poorly written laws. Perfect!

You little boys wanna play cowboy . . . you should be made to jump through every assessment hoop possible and then sign a statement of financial responsibility so that when you do screw up (and Moore did), you have to pay all legal costs and if guilty of interference and murder, sit in jail while paying compensation to the family of the deceased . . . so that the taxpayer doesn't get stuck with the expense from your form of penile enlargement.
Ah, and no tirade can be complete without the obligatory reference to sexual organ inadequacy!

Repeat after me, Mr. Raymond: Freud said that fear of weapons was a sign of retarded sexual and emotional maturity. And you seem a prime candidate for some couch time.

The other posters do a good job whacking these idiots with the ClueBat™, and I'm proud to see them, but people like this really chap my hide.

How can one go through life and be this disconnected from reality?

UPDATE, 8/31: Publicola does whack-a-troll at extended length (he reminds me of me!) to some hoplophobe from a comment at Annika's Journal.

Alex said, "This entire blog is written to demean, make fun of, belittle and generally harass those who don't agree with you." To which I replied, "Nope. It's written to illuminate, expose, correct and educate. The demeaning, belittling, and harassing is just an extra added side benefit." This is what it looks like when people who are tired of the idiocy and bigotry of the gun-control movement stand up for the truth and our rights.

Get used to it, because we're not going to stay silent any more. And we're recruiting.

Quote of the Week:.

Eric S. Raymond is posting again:
Of course, one could argue that Big Media is simply taking its cue from the Democratic Party. (Yes, I know one of those is a wholly-owned subsidiary of the other, I just can’t keep straight which one is on top.) If Republicans are beating the stuffings out of you in every election, it couldn’t be because you have no program beyond screaming “George Bush is eeeeevil!” and licking the anus of the Designated Victim Group Of The Week.
Some have a way with words, others not have way.

Sunday, August 28, 2005

To Louisiana and Nearby Parts: Good Luck

Y'all? Get the hell out of there. And I hope like hell that when you come back, everthing will still be upright and tight. As for New Orleans: I hope that y'all still have a city after this, and not just a bigger salt-water Lake Pontchartrain with some interesting places to fish.

It looks like that storm-from-hell has finally arrived.

Sunday Ruminations, or "Hey Garçon! (Ego) Check, Please!"

A few days ago commenter Lucian Samosata wrote:
As a student of philosophy and political theory, I must say I honestly believe that you are one of this century's foremost thinkers on those subjects. I hope that your value becomes more widely appreciated. Have you thought about writing a book?
Flattery will get you everywhere nowhere, Lucian. (Suckup!) ( j/k!)

I replied:
I've thought about it, but I doubt I could sell it.
I've thought about it a lot more than that, though, so I've decided to expound on the topic a bit today.

I've been studying the topic of individual rights, with special emphasis on the right to arms of course, since about 1994. I've read dozens of books and easily thousands of essays, articles, trial decisions and dissents, web-posts, and papers in that time. From 1995 through 2000 I played around in the Usenet newsgroups; mostly in the napalm-splashed mosh-pit of talk.politics.guns. In late 2000 I was one of the early posters to the now-defunct Themestream.com, where I wrote a couple dozen essays, and even had a couple reprinted at EnterStageRight.com and KeepandBearArms.com. I've been a member of AR15.com since Themestream folded. In 2002 I invested eight months and over 1800 posts at DemocraticUnderground.com (link left cold on purpose). I've been running this blog for over two years now, starting a little over a year after DU's administrator "Skinner" personally kicked me out of his approved-members-only groupthink echo chamber. All told, I've written probably well in excess of a million words on the topic (with side trips to education, current affairs, and other sundry matters).

You'd think it would be fairly easy to assemble a book out of all that. Maybe. If some university somewhere offered a Master's program in the 2nd Amendment, I'm willing to bet I could sit down and whip up a qualifying thesis in fairly short order, but the thing I've discovered is that this subject is pretty complex, and consequently pretty dry. On the surface, of course, it's very straightforward, but decades of propaganda, of urbanization, of changing demographics, have altered the beliefs and perceptions of a large proportion of the population. And therein lies the rub.

Sure, I could write a book, but who would read it? I've noted before that TSM is largely preaching to the choir. I view my time spent at DU as some of the most challenging and educational (though I often felt as though I needed to be wearing a pressurized biohazard environment suit). Being challenged to defend your beliefs and to defeat another's using verifiable fact and accurate citations is very educational, even when it's an obvious exercise in futility. I haven't had much of that recently, so when I stumbled upon Alex at Ian Hamet's Banana Oil! blog I felt like I had the opportunity once again to actually argue a point or six, futility be damned.

Alex said this at one point in our ongoing exchange:
This entire blog is written to demean, make fun of, belittle and generally harass those who don't agree with you.
Nope. It's written to illuminate, expose, correct and educate. The demeaning, belittling, and harassing is just an extra added side benefit. Dr. Michael S. Brown wrote one time that the anti-gun crusade has been a decades-long slow-motion hate crime against guns and gun owners, and I for one am just a bit weary of it. Giving some back is occasionally cathartic.

But it wouldn't make a very good book, I think. Too much of that is too off-putting. And too much dry exposition is as well.

I'm well aware that I am nowhere near as eloquent as Bill Whittle. Nor am I as wickedly humorous (or quick) as James Lileks, or as surgically observant as Theodore Dalrymple, or even as technically precise as Steven Den Beste. But most of all, I'm starkly aware that even if I wrote a book, the people who most need to read it would be those least likely to.

Writing a book on "philosophy and political theory" would be a huge amount of effort with very little return on investment. I'm mostly a technically proficient essayist. I can live with that. Apparently so can the two or three hundred or so of you who read this blog on a regular basis. (And most of you wouldn't buy the book anyway!)

Saturday, August 27, 2005

The WalMart Shooting You Probably Didn't Hear About.
(Or heard something misleading about...)

You probably heard about the mentally disturbed individual who shot two WalMart employees to death in Glendale, AZ. I Googled "Walmart Shooting" and got a bunch of hits on this story, the most recent being a local "Arizona Central" follow-up on the shooter.

But did you hear about this incident? (Hat tip to Zendo Deb of TFS Magnum. I knew she'd have a link to it!) I heard about it on Fox News Radio on my way in to work Friday morning. Here's the pertinent part:
One man was killed and a woman was injured Thursday during an apparent domestic dispute inside a Wal-Mart on the city's southeast side, the second time in less than a week that one of the retail giant's Western stores has been the scene of deadly violence.

Police spokeswoman Trish Hoffman said a witness told authorities that a man had been stabbing the woman inside the store when another man intervened and shot her attacker.

Hoffman said the stabbing appeared to stem from a domestic dispute. She did not know the relationship between the woman and the dead man, but friends of the woman told Albuquerque television stations that she had recently obtained a restraining order against her ex-husband.

"It looks like it's a possibility that the guy who shot the other man will be justified," Hoffman said. "From what witnesses are telling us, it corroborates his story that the male was stabbing the female and he intervened."

The woman, whose name was not immediately known, was taken to University of New Mexico Hospital where she was being treated for multiple stab wounds.

The man who was shot was pronounced dead at the scene. His name was not immediately released, nor was the name of the man accused of shooting him.

Witnesses told Albuquerque television stations that the gunshots shortly after 5 p.m. sent some people running as others hit the floor and crawled to safety.
I asked my wife about it this afternoon. She said she'd heard about the Glendale shooting and the one in New Mexico on CNN. The CNN coverage, she said, left her with the impression that the New Mexico shooter was another criminal. I've been surfing CNN's web page and can't find any coverage of the New Mexico incident, though there are two stories on the Glendale incident. Hell, even the AP piece on the Tuscaloosa, NM story mentioned the Glendale incident, but there has been, as far as I can determine, almost ZERO national coverage of this righteous shoot. This follow-on story by local Albuquerque TV station KOAT indicates that the woman who was stabbed was a WalMart employee - which explains why her ex-husband knew how to find her.

This local KRQE-TV story has the kind of headline you'll pretty much never see in national coverage, WalMart Shooter Likely Saved Life. It also gives names to those involved. Decedent: Felix Vigil. Victim: Joyce Cordova (critical but stable). Hero: the poetically-named 72-year old Due Moore.

Searches on these three names brought up zero hits on CNN. A Google News search on the three names individually scored only one hit - the story I just linked to. A Google News search on Glendale shooter Ed Liu brings up FIVE PAGES of links to various stories on the incident. And the interesting thing? Many of them link to the AP release on the New Mexico incident, because the AP piece mentioned Liu by name.

Here's an example of the kind of reporting that my wife probably heard, from WHDH-TV in Boston:
Two shot at New Mexico Wal-Mart
Err, no. ONE shot, one stabbed. The story is just the AP release, but isn't that headline juicy? "Two shot!!"

Media bias? What media bias?

Wednesday, August 24, 2005

"Adaptation"? Or "Contrary to Principle"?.

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 8th 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 9th Circuit has declared that the Miller decision means the Second Amendment protects only the State's right to a militia. The 5th 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 5th Circuit. The 5th Circuit reversed the lower court, but still we have a split between circuits, and the 5th 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 5th 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 9th 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 9th 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.)

Previous Post in this series.

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 2nd 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 2nd).

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 2nd to mean “any individual can own guns”, somehow the 2nd 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 2nd, 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 2nd.

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).

Next Post in this series
Previous Post in this series

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.

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 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?

Next Post in this series
Previous Post in the series

Tuesday, August 23, 2005

OK, Let's Try this Again.

[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.

--

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.

--

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

--

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).

--

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 9th 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 14th Amendment's "privileges or immunities" and "equal protection" clauses. Unfortunately, it was not. It was a product of its time, as well. The 14th 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 14th 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 9th 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...)

Next Post in the series
Previous Post in the series