By LKB
Like many of you, I am still processing the depth of the legal earthquakes from the Supreme Court late last month. With the 6 to 3 opinion in Bruen now the law of the land, the Second Amendment is no longer a “second class right,” and the test set out in Justice Thomas’ opinion likely dooms many other legal restrictions on firearms ownership.
While it will undoubtedly require more litigation (especially against recalcitrant states like New York and California), groups like the Firearms Policy Coalition, Gun Owners of America, Second Amendment Foundation, the National Rifle Association and many other Second Amendment think tanks now have the wind at their back, and I suspect we will see many such laws start falling shortly.
But as we look forward to the likely success of challenges to bans on modern sporting rifles, magazine capacity limits, efforts to perpetuate “may issue” regimes or otherwise prohibit public carrying, and potentially even the Hughes Amendment and some aspects of the Gun Control Act of 1968, it is important recognize the essential contribution of two particular scholars in getting us here: Don Kates and Sanford Levinson.
While they were not the first to argue that the Second Amendment needed to be taken seriously, in my opinion they legitimized scholarly debate on this subject. Their work sparked a renaissance in Second Amendment legal scholarship in the 1990’s that ultimately led us to Heller, McDonald, and now Bruen.
When I began studying constitutional law in the late 1970’s and early 1980’s, the universal view of “mainstream” constitutional scholars was that the Second Amendment was little more than anachronistic window dressing, and provided no check whatsoever on governmental restrictions on individual firearm ownership or possession. For instance, most constitutional law textbooks either ignored the Second Amendment entirely or dismissed it with a short comment that it in no way protected any individual right or affected any gun control laws (perhaps dropping a footnote to United States v. Miller).
While there were occasional articles in what were perceived as “lesser” law reviews making arguments that have now been accepted as Second Amendment law, mainstream legal scholars at that time either ignored such articles or dismissed them as being written by cranks or NRA shills.
Perhaps due to this monolithic position in mainstream legal scholarship at the time, most courts (including all federal appellate courts) were unwilling to seriously entertain the argument that the Second Amendment protected any individual right.
Judges typically gave such arguments short shrift, treating them as they did arguments by pro se “sovereign citizens” that that paper money was not legal tender, that income taxes are unconstitutional, etc.
At that time there were serious proposals to ban most civilian ownership and possession of handguns (including by key members of the Carter administration). Indeed, the organization now known as the Coalition to Stop Gun Violence was then known the National Coalition to Ban Handguns, and the District of Columbia’s ban on handgun ownership that was struck down in Heller dates from this period. That such bans might be unconstitutional under the Second Amendment was simply not on the radar in most of polite academic society.
Don Kates
In 1983, attorney and criminologist Donald Kates published Handgun Prohibition and the Original Meaning of the Second Amendment in the Michigan Law Review, which examined the historical record (as well as the works of earlier legal scholars) and unabashedly argued that contrary to the near-universal academic view, the Second Amendment was indeed intended to protect an individual right.
While this was not Kates’ first article arguing that various gun control laws and proposals were unwise or unconstitutional (he had published earlier articles in the St. Louis University Law Journal and, amazingly, in the ACLU’s own Civil Liberties Review), this was the first article published in an “elite” law review that argued that the Second Amendment might actually mean what it says, and protects an individual right to keep and bear arms.
How was Kates able to break through and publish this argument in an “elite” journal while others had not? As you’ll see from his article, it is very well-written and researched (but then again, so were earlier works by scholars such as Stephen Halbrook, Robert Dowlut, and Janet Knoop, all of which Kates cited).
What Kates may have had going for him was that he could not simply be dismissed as a purported crank or NRA stooge. He was an accomplished lawyer, criminologist, and occasional law professor whose credentials as a liberal and civil liberties advocate could not be ignored.
And, perhaps, Kates’ willingness to allow for “reasonable” restrictions on the Second Amendment (e.g., at least at that time, he had no issue with prohibitions on carrying outside the home for self defense) distinguished him from what legal academia considered the “gun nuts” who advocated more absolutist interpretations.
While Kates’ article in the Michigan Law Review raised many eyebrows, it did not materially move the needle. Law treatises and textbooks – and the courts – largely continued to ignore or denigrate the Second Amendment throughout most of the 1980’s.
But the fact that the issue was starting to be taken seriously sparked conversations and interest in similar works of other scholars (such as Nelson Lund, Stephen Halbrook, and Joyce Lee Malcolm), as well as a reexamination of earlier works by authors such as Dowlut and Knoop. It also attracted the attention of another scholar who could not be ignored or easily dismissed.
Sanford Levinson
Sanford Levinson is a law professor and political scientist at the University of Texas. For decades, he has been regarded as one of the country’s leading constitutional theorists.
He is not a conservative, originalist, textualist, or a gun owner. Indeed, most of his positions are well left of center. However, even his critics respect him as a prolific scholar of impeccable academic integrity and intellectual honesty, someone willing to ask very difficult questions, do the hard work required to answer them, and let the chips fall where they fall where they may (as opposed to where you might want them to).
Disclaimer: he was one of my professors at UT Law in 1983. Later, when I was an Articles Editor on the Texas Law Review, he was one of my “go-to” resources on the UT faculty.
In the late 1980’s, Levinson turned his attention to the Second Amendment arguments that Kates and others were raising. What resulted was, in my opinion, perhaps the most influential article in Second Amendment jurisprudence: a 1989 Yale Law Journal article titled The Embarrassing Second Amendment which reprised a presentation Levinson had made at a constitutional law symposium in 1988.
Levinson acknowledged that legal academia, for a variety of reasons, had treated the Second Amendment like the crazy old uncle who is locked away in the attic and not spoken of in polite conversation.
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay–The Embarrassing Second Amendment–for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU).
He posited that this failing was intellectually dishonest. That there were, in fact, good faith arguments that the Second Amendment protected some sort of individual right although, as will be discussed below, his conclusions of the scope of that right are quite different than most.
He concluded:
There is one further problem of no small import: if one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights? As Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights were always (or even most of the time) clearly costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs — criminals going free, oppressed groups having to hear viciously racist speech and so on — helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments. Most often, one finds them embracing versions of textual, historical, or doctrinal argument that dismiss as almost crass and vulgar any insistence that times might have changed and made too “expensive” the continued adherence to a given view. “Cost-benefit” analysis, rightly or wrongly, has come to be viewed as a “conservative” weapon to attack liberal rights. Yet one finds that the tables are strikingly turned when the Second Amendment comes into play. Here it is “conservatives” who argue in effect that social costs are irrelevant and “liberals” who argue for a notion of the “living Constitution” and “changed circumstances” that would have the practical consequence of removing any real bite from the Second Amendment. …
For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.
To be sure, Levinson was not arguing that the Second Amendment precluded any particular gun control measures. Indeed, he has long been in favor of various prohibitory regulations. That did not stop some lightweight critics from hysterically accusing Levinson of being an NRA stooge – an assertion that anyone with the slightest acquaintance with Prof. Levinson would know to be utterly preposterous. But there is no question that this article — by a leading constitutional theorist, published in one of the very top law reviews — provoked a huge reaction.
All manner of law professors began publishing articles supporting or disagreeing with Levinson, which were also published in other “elite” law reviews including the Yale Law Journal. These in turn sparked many more articles — including more by Kates and Levinson — symposia, panels, and papers, as legal academia began the robust debate Levinson envisioned on the Second Amendment and what it means.
Levinson’s article also led even hardcore Second Amendment skeptics such as Harvard’s Laurence Tribe to amend their constitutional law textbooks and treatises to acknowledge that there were serious arguments as to whether the Second Amendment protected any individual right.
Thus, as a direct result of Kates and Levinson legitimizing debate about the Second Amendment in polite academic society, there was an avalanche of Second Amendment scholarship in the 1990s, including influential works by scholars such as Akhil Amar, Elaine Scarry, James Ely, Lucas Powe, Glenn Reynolds, Robert Cottrol, Eugene Volokh, Randy Barnett, David Kopel, and many others.
This debate convinced some scholars such as Daniel Polsby, who had previously considered the individual rights interpretation of the Second Amendment to be “a lot of horse dung,” to recant and admit that:
[A]lmost all the qualified historians and constitutional-law scholars who have studied the subject [concur]. The overwhelming weight of authority affirms that the Second Amendment establishes an individual right to bear arms, which is not dependent upon joining something like the National Guard.
This tide of scholarship – which in a few years time turned the individual rights view of the Second Amendment from heresy into gospel – in turn helped influence courts to reexamine their views of the Second Amendment, which ultimately resulted in Heller and now Bruen.
A few days after the Bruen opinion dropped, I was able to interview Prof. Levinson about his reactions to the decision.
On one hand, he does support the procedural result of Bruen. He sees the discretionary New York permit process as arbitrary, flawed, and favoring the well-connected, and thus could have been invalidated any number of ways. He also believes that Heller and Bruen were correct to find that there is a constitutional right to self defense, and such a right could invalidate some (but by no means all) prohibitionist laws.
However, Levinson would get there by finding such a right in the Ninth Amendment and the privileges and immunities clause of the Fourteenth Amendment, rather than in the Second Amendment. His interpretation of the Second Amendment is that it protects “civic republicanism,” that is, the right of the people to have arms in order to resist tyranny, although he admits that view is not one most judges would be comfortable espousing.
On the other, he vehemently disagrees with the language and reasoning of Bruen, indicating that Justice Thomas’ opinion “pours gasoline on the culture wars.”
He criticizes the Court’s “insane embrace” of 1791 originalism and its reading of the applicable history, especially in light of his view that justices are “wildly unreliable as historical narrators.” The Court’s opinion has created “its own version of the Second Amendment,” which he sees as “fictitious” and “radical.” He views Second Amendment literalism as a “looney view” of the Constitution.
Given that his 1989 Yale Law Journal article helped start the avalanche of Second Amendment scholarship that has now culminated in this “radical” decision, I asked if he has any regrets about writing it. “My friends have asked me that a lot,” he replied, but “no, for two reasons.”
First, he says the purpose of scholarship “is to get things right.” Ignoring questions about a constitutional provision because you are afraid of the possible answers is “a scandal,” and the Second Amendment is an interesting issue that deserves serious study. And he stands by his “civic republicanism” thesis: that the reason for the Second Amendment is to protect the right of the people to have arms in order to resist tyranny.
Second, he sees his views on the Second Amendment as rooted in political reality. At the time he wrote it, Democrats had “overindulged in symbolic gun control” that needlessly alienated gun owners. Because many gun owners are single-issue voters, that had the effect of creating many Reagan Democrats, and that has forced a political realignment that might not have happened had the Democrats “shown more genuine respect” for gun owners.
People of all political stripes have disagreed with Prof. Levinson’s views on constitutional law for decades. As an originalist, I disagree with many of them. But unlike so many in academia today, Levinson has never shied away from difficult issues because the debate or the answers might be “triggering,” politically inconvenient, or contrary to the prevailing narrative.
Indeed, he sees grappling with such issues as the fundamental role of a scholar. Whether you agree or disagree with Levinson’s views or his conclusions, his honest challenge to the legal academy was a key catalyst in the development of today’s Second Amendment law.
How would Don Kates (who passed away in 2016) have reacted to Bruen? I asked University of Tennessee law professor Glenn Reynolds (a/k/a Instapundit), who collaborated with Kates on Second Amendment articles, and he responded:
I believe that Don would view the Bruen decision as largely correct. Though much of his scholarship was focused on what Sandy Levinson calls the civic republican aspect of arms-bearing, Kates also argued that self-defense was a fundamental right. Indeed, as he pointed out in a Constitutional Commentary article, “The Second Amendment and the Ideology of Self-Protection,” the framers didn’t draw much of a distinction between ordinary burglars, robbers, and murderers and a tyrannical government. To the framers, action outside of legal authority was just as criminal when engaged in by government officials and employees as when engaged in by ordinary criminals.
Neither Kates’ nor Levinson’s articles espoused Second Amendment absolutism. Both viewed various restrictions on gun ownership as constitutionally acceptable, including many that will likely not survive under the Bruen test.
But both of these scholars had the courage to call out legal academia for its intellectual laziness, if not its cowardice in failing to address the Second Amendment. That they helped start the conversation in legal academia that led to the Second Amendment being taken seriously deserves our recognition and our appreciation.
This article is very informative. IT shows just how the Second Amendment is an individual right.
Thanks. I do recommend everyone read David Kopel’s 1998 article that is linked above, which has been cited by many courts. It exhaustively catalogues and discusses the cases and writings about the Second Amendment prior to 1900.
It absolutely demolishes the current argument of the media and the left that the “individual rights” interpretation of the Second Amendment is somehow just a recent creation of the NRA and its allies.
LKB. Very good post. If firearms ownership is a civil right, and I think it is, how can a business open to the public ban people from carrying guns on the premises?
Could they put up signs banning Jews? Muslims? Gays? They would be violating civil rights. Why is it ok to ban gun owners?
Public accommodations is a sticky wicket. While you may not agree with them, the owner / occupant of private property has rights too.
“Could they put up signs banning Jews? Muslims? Gays?” No, but not because of *constitutional* provisions — it’s because of federal civil rights *statutes* prohibiting such in public accommodations. We don’t have those protecting gun owners at the federal level (some state laws come pretty close).
I believe that businesses that are open to the public should not be able to ban guns. For the simple reason that they can’t duct tape your mouth to keep you from espousing opinions contrary to theirs before you speak them. Which would definitely be a violation of your first amendment rights. Therefore, if you don’t do anything illegal / stupid while you’re in their business they should not be able to bar you from carrying guns.
Really a reply to LKB.
So what you’re saying is some (civil) Rights (religious affiliation, sexual preference, gender, race) are more important than other civil Rights (right to self-defense/preservation) – at least in the eyes of Law.
A Civil Rights violation (should be) a Civil Rights violation. Full stop.
Any establishment open to the general public that bans guns from the premises has to take responsibility for the general public’s safety from gun violence. I believe that if they do not take reasonable steps to enforce such bans to ensure the safety of the general public that they should then be legally sued by victims of gun violence that occurs on said premises. This is one way to stop mass shootings in these so-called “gun-free zones.”
In reply to 300Blackout, the difference is that the Bill of Rights only applies to limit the authority of the goivernment; it does not apply to private citizens or businesses. Those other civil rights are not protected from interference by private citizens because they appear in the Constitution, but because there are specific statutes that prohibit such discrimination. If there was a law that prohibited business owners (other than bars) from banning guns, then your argument would have merit.
I do not care one bit about what some splitting hairs bookworms have to say about the 2A.
The only thing of concern here is what History has to say about Gun Control. And History Confirms Gun Control in any shape, matter or form is Rooted in Racism and Genocide.
When Gun Control reaches its peak Racism and Genocide is always downhill from that, History Confirms It. Gun Control has no place in America anymore than slave shacks and concentration camps have a place in America.
So much crap has been said about the 2A the knee jerk norm is for two bit politicians to shove the 2A under the microscope while racist and nazi based Gun Control rot skates on by.
What has not been placed under the microscope is Gun Control. And because of that so called defenders of the 2A got their butts handed to them when the democRat majority house passed their insane Gun Control manure.
Until Gun Control is scrutinized and The Truth About The History Of Gun Control becomes the tip of the spear to defend the 2A expect to see more of what was seen in the house. Until the day comes so called defenders of the 2A remove their heads from their history illiterate behinds and speak up to defend the equally Historical Second Amendment expect the rot inherent with Gun Control to be in the America’s future.
*You* may not care what legal scholars say. Courts, on the other hand, often do, and from a practical perspective that’s what matters. Until you can persuade courts to accept your arguments and invalidate laws that violate the Second Amendment, your arguments remain just that: arguments, and the laws stay on the books.
Pray tell how *you* propose to get the courts to accept your arguments (which were made in almost your exact words by 2A supporters throughout the 1960’s and 1970’s — with pretty much nothing to show for it) and do something with them. Suffice it to say that this old appellate lawyer knows a few things about what courts find persuasive and what they don’t.
Recognizing how we got to the greatly improved position we are in today — and recognizing those whose efforts helped get us here — is crucial to understanding how to replicate that success in other areas, as well as preserving the gains we have made.
This is an excellent article, and I request more along these lines (please Dan/TTAG). It’s an intellectual thinkpiece that directly contrasts the noise espoused by emotion-driven rabblerousers stirred up by their Leftist Scum™ masters.
[borrowed from Geoff PR, all rights reserved – lol]
“[borrowed from Geoff PR, all rights reserved – lol]”
I hereby declare that the expression “Leftist Scum ™” is in and shall remain in the public domain, usable by anyone to use as they see fit… 🙂
The last two lines of my daily prayer: “Bless the souls of our loved ones who have gone before us, and keep them near to your light.
Save us from our evil treasonous government, it’s leftist lies, and it’s vile communist threats against our families, our freedom, and our country.
Am I the crazy uncle in the attic?
Good job LKB, I wish I had time for more scholarly 2A legal efforts, instead of the “she punched you in the face because you spray-painted her dog” – type legal work I currently do.
Still sounds more interesting than my day job…
Uncomfortable as it may for some to admit it, civic-Republicanism when individuals have the right to bear arms is indeed meant to ensure liberty against tyranny. Coming from where the Founding Fathers were at the time, they were well-aquainted with British confiscation or weapons and armory so the colonists could not use those armaments against them. Thus the very specific, strong words “the right of the people to keep and bear Arms, shall not be infringed”. To be honest, what is there left to “interpret” in this statement? SHALL NOT BE INFRINGED. Now, in the name of “gun safety”, politicians and rich bourgeoisie industrialist-funded organizations want to make a name for themselves and get “hits” on social media pages. I look forward to the day when gun safety returns to its actual meaning: The proper and safe handling and storage of a firearm.
Prof. Levinson should perhaps reconsider “civic republicanism” to include all manner of tyranny, not just those inflicted by the Government, as Natural Rights, as described by Samuel Adams:
Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.
You bring up a good point – especially with the reference to the right of property. I cannot understand how people stand for the concept of property taxes. How truly can your property be your own when a local government can confiscate it if you don’t pay them property taxes? Sounds more like extortion to me. If local governments need to tax, just make a local income tax – not a situation where the government can literally take your primary residence.
Very good point, MrMax. I totally agree. Owning property does not ensure monetary income, therefore, taxes should never be based on property value alone. If only there were more people out there who understood how unfair property taxes are. The problem in this country is that there are so many voters out there who don’t own property so they could care less about property owners. Our forefathers’ original plan was that only property owners could vote. But, that was changed by the progressives in government. SO SAD, SO BAD.
You’re usually better off financially with a property tax than a state income tax, especially if you live in the county and avoid the double city property tax. They’ll come take your home for not paying your income tax as well. *Not that I’m for property taxes. I hate getting that bill.
“How truly can your property be your own when a local government can confiscate it if you don’t pay them property taxes?”
Move to one of the ‘laboratories of democracy’ like Florida, where state law recognizes a ‘homestead exemption’ (in Florida, the first 50 thousand of assessed property value on your primary residence) being tax-free. That also extends past age 65 (if memory serves).
It’s what makes Florida an attractive place for those with massive civil judgements hanging over their heads like O.J. Simpson…
Exactly MrMax! A third grader can understand what the second amendment says. I don’t need a law professor to explain it to me. All you have to do is read the history of the colonies in the early United States to understand what the founders thought.
Again, all well and good. You can read it and understand it. Great.
But how do you persuade courts to accept your understanding and invalidate laws as unconstitutional (which is always a very heavy lift)?
Thanks for responding LKB. Perhaps the Bruen decision and the decision against the EPA will hasten the day that power swings back to the people in an orderly fashion. But based on our tyrannical govt. and their minions they stir up regularly I’m not holding my breath. I guess the last resort is watering the tree…that might get judges to wake up and do their job.
There’s always severe balkanization, which may be our best hope. A “reverse-civil war” if you will, where instead of seceding, we kick them out. We are the Americans here, after all. Or politically separating the large metropolitan areas from the overwhelming majority of the rest of the state, or annexing pockets of sanity from one liberal shit hole to a free state. It’s the left that wants to impose it’s insane oppression on literally everyone else.
I’m waiting for all the scholarly works showing the 3rd Amendment gives mortgage holders like Blackrock the power to house soldiers in your home.
Scholarship is so stupid. I know what I want from my life and damn any ivory tower elitist who tries to explain to me what it is I really want per his scholarship. Turn the BoR to kitty litter and nothing changes. I claim my rights.
If by “safe storage” you mean in a holster and on your person, then I will tend to agree.
If you actually mean locked up in a safe with your ammo elsewhere, then we have a definite problem.
Safe storage to be inclusive of proper care in lubrication and further treatment to prevent deterioration (obviously so it wouldn’t be a danger after being taken from whatever voluntary storage in which the firearm was kept). With regards to a safe, that should be an individual choice. I have 3 year old grandchildren coming over to visit and the very last thing I’d want is for them to get a hold of a loaded pistol. So the pistols by the bed are in quick release pistol safes and the others around the house are up high – out of reach of little hands. I don’t need a politician to lecture me or pass legislation to force me to do this a certain way. Politicians still haven’t learned they can’t legislate common sense. They are trying to and that’s why there are so many government rules from the Federal to the local level no sane person can keep up – let alone, travel to another city or state without running afoul of one law or another.
The NFA (1934) is the “original evil” that needs to be overturned. As everything that SOB FDR and his coven of socialists was associated with, it clearly was Unconstitutional.
Stop nibbing around the edges and dig it out at the roots.
“SO_B FD_R” or was it “cove_n of socialis_ts” needs “moderation”? pathetic Canadian progs
“Sou sheall eest” is the flag word that held it up.
Isn’t it curious how they ‘contrived’ the NFA Act in 1934, right after they banned ownership of private gold?
Just like they are now ramming through banning our favorite sporting and self-defense weapon, the AR-15 platform as they are planning to ban cash with digital g-currency??? And additionally, the Senate just passed a useless climate control and tax increase for us.
Coincidence? Or the Marxist plan to achieve unopposed Tyranny repeating itself? This time on steroids in the form of virtually unlimited Billionaire political financing?
That’s not a Republic. It’s a Marxist Corporatist Plutocracy.
“The NFA (1934) is the “original evil” that needs to be overturned.”
Nice idea, but not practical.
‘Heller’ recognized that there were weapons that were particularly dangerous, and could be regulated. So, outright repeal is likely out. And would you really want someone like a mass-shooter with money behind them like the Las Vegas concert shooter having a fvcking mini-gun and tens of thousand of rounds belted up and ready to rock from a high position as he did?
What ‘Bruen’ leaves wide open is, repeal of the 200 dollar tax as being akin to a poll tax. And the Hughes amendment being struck…
“And would you really want someone like a mass-shooter with money behind them like the Las Vegas concert shooter having a fvcking mini-gun and tens of thousand of rounds belted up and ready to rock from a high position as he did?”
Do police and federal government have such weapons?
Any exception put forward is justification for another to be put forward. Every restriction on firearms is based on some form of “public health and safety”. Why is one potential danger a more valid exception than another? As so often stated here, people bent on killing will find a way.
And be very prepared to ignore every bit of it when the shit hits the fan – the entire point of it is to keep us from fighting back as effectively against their non-neutered weapons. FA triggers, selective safeties, a third-hole template is what I mean. All easily available. For the time being, anyway.
I think the entire US Constitution should be interpreted first by the meanings of the words and phrases at the time of the founding.
If the text is clear, as it is in the Second Amendment, no further interpretation is necessary. It’s pretty darn simple.
All of these legal scholars obfuscate the basic meanings of the words and that should not be tolerated.
Well, originalism (i.e., look at what the words meant when the provision was adopted, rather than what you want them to mean today) is certainly now the ascendant constitutional philosophy at the Supreme Court.
But how did that happen? And how do you persuade federal judges to accept your arguments and strike down laws that violate what you contend are your constitutional rights (which most courts, quite properly, will not do unless the law is very clear)?
Like it or not, legal scholarship plays a very big role in persuading judges and shaping the law, especially when you are dealing with the huge stick of declaring a law to be unconstitutional. In the context of the Second Amendment, absent the wave of legal scholarship and discussion in the 1990’s that was largely prompted by Kates and especially by Levinson, we likely would still be where we were in the 1960’s and 1970’s — while most Americans believed the Second Amendment protected an individual right, for a lot of reasons courts were simply unwilling to entertain that argument. It was only after judges could point to the scholarship and say, “see, this isn’t a radical or half-baked argument at all” that the worm began to turn.
Are most legal scholars today leftists and/or intellectually dishonest? Probably, and the situation is getting worse with conservatives / originalists often being shut out of teaching positions, especially at “elite” schools. I also doubt that today’s Yale LJ would publish something as potentially incendiary to a liberal position as Levinson’s article (which is one of the reasons “elite” law journals have lost a lot of the heft they once had).
But the simple reality is that in matters of constitutional interpretation, court have and will likely continue to be influenced by what legal scholars do. Like it or not, it’s how the system works.
Might have to get a new “system.” One that doesn’t lie to us 24/7.
We live in a free country and freedom can be very dangerous. “Those who are willing to give up freedom for safety will end up with neither and they deserve neither.” I believe this quote was uttered by Benjamin Franklin. These are very wise words and should be heeded by freedom-loving people everywhere.
Ladies and gentlemen of TTAG , Thank you! For all the Insights and Comments on this issue and all the others we discuss on a daily basis, including Insights from the ‘Focused’ Debbie W. who truth be told scares me a little bit. The below Quote is written by Benjamin Wittes who writes for Lawfareblog.com on Friday, July 15, 2011, 6:53 AM Ben wrote:
Here’s an interesting historical fact I have dug up in some research for an essay I am writing about the relationship between liberty and security: That famous quote by Benjamin Franklin that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” does not mean what it seems to say. Not at all.
I started looking into this quotation because I am writing a frontal attack on the idea that liberty and security exist in some kind of “balance” with one another–and the quotation is kind of iconic to the balance thesis. Indeed, Franklin’s are perhaps the most famous words ever written about the relationship. A version of them is engraved on the Statue of Liberty. They are quoted endlessly by those who assert that these two values coexist with one another in a precarious, ever-shifting state of balance that security concerns threaten ever to upset. Every student of American history knows them. And every lover of liberty has heard them and known that they speak to that great truth about the constitution of civilized government–that we empower governments to protect us in a devil’s bargain from which we will lose in the long run. Very few people who quote these words, however, have any idea where they come from or what Franklin was really saying when he wrote them. That’s not altogether surprising, since they are far more often quoted than explained, and the context in which they arose was a political battle of limited resonance to modern readers. Many of Franklin’s biographers don’t quote them at all, and no text I have found attempts seriously to explain them in context. The result is to get to the bottom of what they meant to Franklin, one has to dig into sources from the 1750s, with the secondary biographical literature giving only a framework guide to the dispute. I’m still nailing down the details, but I can say with certainty at this stage that Franklin was not saying anything like what we quote his words to suggest. The words appear originally in a 1755 letter that Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly’s efforts at the behest of the family, which had appointed him. So to start matters, Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the “essential liberty” to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security. What’s more the “purchase [of] a little temporary safety” of which Franklin complains was not the ceding of power to a government Leviathan in exchange for some promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes–and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier–as long as the Assembly would acknowledge that it lacked the power to tax the family’s lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for frontier defense and maintaining its right of self-governance–and he was criticizing the governor for suggesting it should be willing to give up the latter to ensure the former. In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade. Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned.
‘I’m jus sayin’… That is his story and he’s stickin’ to it. In my opinion We need to be careful how we proceed when it comes to the Left. Not get bogged down with interpretations and ‘facts’ of past Statesmen and politico’s who have already twisted and spun Everything said the last couple of hundred years to suit their needs and purposes . THEY LIE ! ‘Shockin right?”…about Everything ! Did WE ever know the truth about Anything! From Kennedy, Oswald, Vietnam, Afghanistan etc. If They ‘Propose” a Bill to ‘Help’ us, introduce a NEW Law that is for our own good (right) Watch the phuck out we are about to get hosed again somehow. And we are getting hosed NOW!. From the ‘jabs’, the pandemic, anti-social distancing, The current placeholders (gov’t)say: It’s OK to be a non-entity! they say (we like to be referred to as he her him it they youz we’z from now on ….Just do what we say! COMPLY and you can invent whoever/whatever you wish to be and take the red pill and drink this kool-aid! and STFU!
What this all boils down to is the question that sometimes runs on an endless loop in my brain about all this is ‘ I PRAY I don’t want to hear later on (If I survive this shindig) from ‘The Next Generation’ is ‘Why did you guy’s wait so long ???!!! What were you waiting for? a knock on the door???? (…to do something about the tailspin we are in the middle of now, while we watch all we hold dear ‘Threatened by this EVIL CULT!’). Ya know on a personal note when I was run off the road years ago on my bike on a highway in an east coast Rathole, when I came to, many hours later (by myself) of course, because nobody cared to stop and help. Was the ONLY way I was going to make it out of that ditch ALIVE was by MYSELF! That’s how this S***! feels NOW! (again). This feels CLOSE!, SOON, Pushed against the final wall! breathing down our throats! But, What’s the tipping point? What will THEY have to do to be the game changer for the ‘Peep’s’ to say ‘That’s Enough !” It’s easy to say “I will die with my boots on!” or ‘…my cold dead hands!’ Colorful, Valiant but for now just talk. I say ALL this because I am concerned, extremely concerned that the left thinks of ME (and all of YOU too) That WE are now labeled as homegrown (extreme?) TERRORISTS! or somesuc BS. And my PRESIDENT good old #45 is Evil, crazy, delusional etc. I AM NO TERRORIST ! I AM AN AMERICAN! and I KNOW , I remember how great it felt to be an American with Mr.Trump helming our country. I happen to live very close to that open boarder now that could quite possibly be the next gateway to hell! Everything EVIL is crossing over now. When all the alphabet Agencies did their jobs and the gov’ment wasn’t run by Aliens (kidding?) this border would have been shut down permanently and the only ‘concern’ was all the bodies of these illegal Terrorists log jamming the rio grande. Which is now noting more than a ditch !Trump would just call in the Engineers ’nuff said. The Left seems to think they have us, WE are ready to fold. WE surrender to their more superior wisdom and We will step aside and become good little slaves/drones because we’re stoopid and need to be handheld and walked to the Ovens to be burned along with our gunz. Once the dreaded ‘Patriots’ are out of the way, the global prisoning can begin. All who oppose will be arrested . Resistance is futile (look what we did to those so-called patriots…snicker snicker). They will then say: Now listen up citizens, you need to wear masks again, we need to re-institute social diseasing, MONKEY POX is gonna kill ‘ya if you don’t Comply. The Republicans need to be assimilated. China is our friend. Hunter will see to the smooth transitioning to Chinese currency. VP Pelosi say’s all ‘citizens’ now need to carry I.d. pinned on their Uniforms @ all times. The colors of your Uniform will reflect on your Compliance with our demands. Please don’t make yourself wear the colors of the ‘insurrectionists’. Comply and you will be spared…uh, I mean SAVED!.
Not going to happen.
https://www.lawfareblog.com/what-ben-franklin-really-said
“Like it or not, legal scholarship plays a very big role in persuading judges and shaping the law, especially when you are dealing with the huge stick of declaring a law to be unconstitutional.”
And publishing in general.
It’s precisely *why* we have been seeing a lot of books espousing the erroneous belief that the ‘wild west’ of yore had lots of gun laws, and that guns were far less common in individual homes. That is was the gun companies using that fiction to sell more guns…
Well, Sir, excellent article on esoteric reference to the seriousness of the 2nd/A issue. But the American representative ‘Republic’ was designed to keep control over the ‘limited’ representative government by a majority of the people who rule in the electoral process.
And I don’t see the need for so much scholarship, which causes more obfuscation than clear objectivity. All the 2nd/A This has been settled a long time ago.
Yes, the ‘powers that be’ have been ignoring this, and using illegal state law to try to establish the foot in the door of Gun Control where there should not be any at all.
The insidious problem is that the hired hand legislators have taken it upon themselves to make laws that they know the majority of We The People would not agree to if we had the time to take out of our brainwashed, overburdened lifestyle just keeping up to survive, to keep a fucking Chicken eye on these criminals.
We should mandate national referendums on top of state referendums like the one they had the other day in a state concerning abortion where enough people pro-abortion people came out and prevented the state from enacting an anti-abortion law.
The hell with ‘like it or not’ to persuade SCOTUS on anything. As much as they try to, they simply DON’t have Constitutional authority to Make the laws. They just interpret if they are unconstitutional, or not, and that’s it! You know, like they did in several other SCOTUS precedent decisions about the uninfringeable 2nd/A.
Even The case for absolute private gun ownership including the type of firearm, which encompasses the upgrade to modern advanced weaponry–the case escaping me at the moment–has all been settled.
What they are ‘challenging’ now is the never ending merry go round of defying established, challenged, and re-affirmed Constitutional rights, when they shouldn’t even be heard. And re-directing them to court challenges over and over and over again.
Instead, Mr. LKB, The currently politically corrupted beyond repair so-called United States Justice Department should be indicting, prosecuting, and locking up violators of 18-USCC 241-242 Like the leaders of New York who flagrantly disregard Bruen.
And instituting a national referendum before any important new State or Federal laws would be allowed and having a vote for the last word on personal private firearm ownership without constraints like political party oversight or influence, just all the citizens regardless of affiliations on whether or not such and such law should be passed…
Would skeer the sheet out of the extreme Marxist element because just as many Democrats would vote against the Government’s authority to regulate to disarm the populate by any such laws and non-Marxists.
Judges don’t need ‘persuasion’. Just the facts. And the Facts are clear and legally well established. And legislators need to do what WE fucking want them to do. NOT what special interests, lobbyists, or extremist agenda-based politics want them to do.
Or else!
We have the right of self defense. Gun rights are the rights of the individual, not the militia.
Shall Not Be Infringed. Seems pretty simple to me.
“… in the late 1970’s and early 1980’s … ‘mainstream’ constitutional scholars [viewed] the Second Amendment [as] little more than anachronistic window dressing, and provided no check whatsoever on governmental restrictions on individual firearm ownership or possession.”
As usual, people “hear” what they want to hear.
Saying it another way, facts and truth are irrelevant to many (most?) people who elevate their DESIRES above all.
Rapists do not care about the truth that raping a women is a horrible and devastating violation of that woman and that it is illegal. Rather, rapists simply want what they want and go about raping women anyway. The most boorish rapists simply threaten their victim into compliance. The most cunning rapists drug their victim or lie to their victim (e.g. excessive false flattery to obtain “voluntary” consent) to succeed in their rape.
Many (most?) academic scholars and politicians are in the same category as rapists, usually falling into the later category (“winning” over the populace through deceit or figurative “drugging”). Of course a non-trivial number of politicians are in the first category and are all too happy to threaten the populace to gain their compliance.
Somewhat related to my comment above:
People want what they want. And many (most?) people–scumbags–will employ all manner of unjust avenues to accomplish their objectives.
Scumbags will do any or all of the following to gain your compliance:
— vomit meaningless words
— deceive you
— threaten you with financial injury
— threaten you with physical injury
— threaten you with emotional injury
That last category–threatening emotional injury–is perhaps the most insidious. And scumbags’ favorite emotional injury threat: making you an “other” in order to isolate you as much as possible from your family, work, and community.
Note that many (most?) academic scholars, lawyers, and politicians excel at scumbaggery.
There’s a couple of people missing from this roll call, including in my opinion the single biggest.
First up is Stephen Halbrook, frequently an attorney for the NRA and a law professor at George Mason. His 1984 book “That Every Man Be Armed” reopened the debate about John Bingham (primary author of the opening paragraph of the 14th Amendment) and the origins of the 14th amendment. Unfortunately, because of his NRA ties legal academia didn’t pay him any attention.
Then in 1999 Yale law professor Akil Reed Amar wrote the book “The Bill of Rights: Creation and Reconstruction” and it’s my understanding that this book triggered the cases that became Heller.
Amar found most of the same quotes by John Bingham and supporters that Halbrook had found. This book was never supposed to have been about guns at all, in fact Amar visibly hates guns and you can see it all through the book and especially at the conclusions. The book was supposed to be about how the 14th Amendment transformed the Bill of Rights but from the research he did, he soon learned that no piece of the BoR was affected by the 14th as significantly as the Second Amendment was, or at least that’s what should have happened.
Amar proved that the US Supreme Court destroyed the Bill of Rights between 1870 and 1900 and only rebuilt it in crooked fashion. The two most destructive cases were The Slaughterhouse Cases of 1872 and US v Cruikshank in 1876.
According to Amar, the original Second Amendment of 1792 was purely a political right tied to militia service which in turn is one of four political rights, the others being voting, jury service and running for office. I for one don’t think he’s right about that but as I’m about to show you, it doesn’t matter. Amar is the guy who pointed out that because Bingham and his supporters very clearly intended to arm the newly freed blacks against the rise of the proto-Klan, and because blacks didn’t have any political rights until the 15th Amendment a few years later, the 14th Amendment of 1868 transformed the Second Amendment from it’s ties as part of a political right to a personal Civil Right unconnected with militia service.
Because of Amar’s status in legal academia, this was taken seriously. This was the breakthrough we needed. It broke the back of the collective right and militia arguments.
In 2008 Charles Lane wrote a book called “The Day Freedom Died” in which “the day” was the day the final decision in the United States v Cruikshank came out. Lane basically fleshed out the same story told by Amar about the Cruikshank case and is dependent on Amar’s work for its background. Also in 2008 Scalia cited to Lane’s book in the Heller decision which was an acknowledgment that Amar was right and the US Supreme Court had made a catastrophic error starting with Slaughterhouse.
The Slaughterhouse mistake has not been corrected officially because it’s no longer necessary. At this point almost all of the Bill of Rights have been incorporated against the states under the due process clause and going back to what should have happened under the Privileges or Immunities clause isn’t necessary.
But everybody tracking this knows that Amar was right the whole time. His decoupling of the Second Amendment from its militia origins is still an important part of the debate.
Jim:
As you’ll see, I cited / linked to Halbrooks’ pre- and post-Kates works. Like Lund, Dowlut, and Knoop, they all did excellent scholarship that was later recognized, but at the time they were not taken seriously for exactly the reasons you posit.
Amar (who as you’ll see I listed first in the list of other influential scholars who were part of the avalanche) is hugely important. (Levinson, Amar, and Tribe are considered to be the leading constitutional theorists of the era: when they speak, people listen.) But while Amar was clearly thinking along these lines in the late 1980’s (see Levinson’s mention of him in the YLJ piece), my understanding is that Amar’s Second Amendment stuff came out after Levinson’s original presentation in 1988.
(BTW, while Amar’s treatment of Cruikshank was extremely influential, it was hardly unique: Wallace Mendelson and others were making the same arguments in the early 1980’s, which likely influenced Halbrook.)
But you are indeed correct: once you had Levinson AND Amar both saying “there’s something here,” even Larry Tribe had to treat it seriously. And thus came the resulting avalanche that led to Heller and now Bruen.
Take a look at something I emailed to the AG offices of both NY and Cali yesterday:
https://old.reddit.com/r/gunpolitics/comments/wcwva4/just_emailed_the_following_to_the_ags_offices_in/
I’m hoping you have some insight into whether or not Saenz v Roe is useful in some reciprocity arguments.
Letters to those state AGs are a waste of time, and are probably counterproductive if you actually intend to go after them.
If you are serious about trying to mount challenges to the NY / Cal “no carry permits or reciprocity to nonresidents” systems, know that it’s going to require test cases that are litigated by hard-edged professionals. Expect it to be a slog with all manners of dirty tricks being employed by the other side. E.g., they find an excuse to bust you the next time you cross their state line, and then they can justify not giving you a permit / letting you carry.
If you really want to go forward, I strongly suggest you get in touch with FPC, SAF, or another reputable 2A organization with a good track record of doing test cases, and see if they are interested. They may well know of test cases on these issues that are either already on file or are about to be.
A third grader can understand the Second Amendment as well as most of the rest of the constitution. You might have to give them a dictionary and some time to sort through it but they can do it. It’s amazing to me that legal Scholars are so ignorantly stupid.
Texican,
Those legal scholars are not stupid in the slightest. Rather, they “argue” in favor of what they want rather than what is right.
In fact I will claim that they are fiendishly clever–note that there are two objectives to their “arguments”:
First objective is misleading people and hoping that they buy it.
Second objective is creating a “mainstream consensus” and hoping that scholars and experts who disagree will silence themselves, fearing mockery or, much worse, a serious hit to their career.
That second objective is the most insidious. Of course it is nothing more than peer-pressure just like “fellow” students applied to other students in middle school or high school.
Many legal “scholars” certainly fall into your description.
But have you actually read any of the linked articles? Neither Levinson nor Amar are even remotely pro-gun, but both bucked their own political views and the then “consensus” in legal academia because they looked at the language and the historical evidence and concluded that the prevailing consensus was wrong, as did others such as Polsby. Even Larry Tribe begrudgingly came around to the individual rights position eventually.
Denigrating law professors as a group is easy, especially these days when so many of them today richly enjoy all the mockery that can be heaped on them. But broad characterizations are inaccurate, and unfair. There are some like Levinson and Amar who are intellectually honest to a fault (even when following the results of their research leads to a conclusion they did not want to reach), as well as ones like Reynolds, Volokh, Barnett, Kopel, and others who have done and are doing yeoman’s work in the fight to get the courts to recognize our Second Amendment rights.
LKB,
I always appreciate and value your thoughtful articles and responses.
In response to your comment, I have not read the linked essays simply because I trust your commentary on those essays to be accurate. Please note: another one of my comments above asserts that “many (most?)” legal scholars are charlatans, which allows for the relative few who are honorable and publish articles in pursuit of truth and justice–even contrary to “mainstream consensus” as you indicated.
Thus, while I assert that my scathing criticism applies to “many (most?)” legal scholars, it clearly does not apply to all as you illustrated.
The term “law of the land” is a poor choice for what the courts do. Laws in this country are required to pass both houses of congress and be signed by the president. Court decision don’t meet these requirements so aren’t laws
The Supreme Court’s main duty is to interpret our Constitution and apply it to test the Laws passed by Congress as to their constitutionality. The Court cannot create new laws or rights. It can only either uphold laws or nullify laws. Justices who want to change the original meaning of our Constitution by their political biases are not only wrong but extremely dangerous to the survival of this country as a free country.
I have a copy of the Constitution and the Amendments. The Original Constitution, as well as the BOR are written with a minimum of legalese. All in language anyone with even an 8th grade level of education could then, and can today understand.
And some will claim rights like freedom of speech are limited or predicated on some excuse to limit or censor it. Such as the claim that you cant shout fire in a crowded theater etc.
If there is a fire I certainly hope someone does shout.
Point is, with rights come responsibilities. You have the right to say anything. But, there could be legal consequences for saying certain things. Liable, inciting panic or riot etc.
As an American Citizen, you should have the right to purchase, own, and carry any arms/weapons you choose. With the limitation of courthouses, jails/prisons, polling places, or private property where the owners choose to prohibit arms.
There is some gray area regarding commercial property. I Know, it’s a privately owned business. However, it is also a public accommodation. A place open for business to the general public. As such there are limits on what or who can be prohibited.
If a commercial property owner wants to ban firearms, he or she should be free to do so with the caveat that he or she then becomes responsible for the safety of those entering that property from firearm violence. If he or she is negligent in protecting people from firearm violence while on said property, he or she should be taken to court and sued for such negligence. This is just common sense.
Its fairly simple to me. Two key elements, shall not be infringed and the argument that you had to belong to a militia. During the time the creation of the Second Amendment you could not even be in a militia unless you owned a firearm. There were no government issued weapons or pay for being in a militia. You were a volunteer and protected your local community with your own weapon, ball and powder. Constitution also calls for defense against enemies foreign and domestic and we now have plenty of those Domestic enemies called Democrats and Rinos in Congress and other State and Local governments who favor illegals over citizens and treat us like foreigner and them like citizens. (not to mention criminals)
The average gun owner who has been a regular reader of TTAG for at least the past 10 years, has learned more about the Second Amendment then any ivy league law school graduate. That is not an exaggeration. All you have to know is just how little time a lawyer in school, spends reading about the Second Amendment.
I am seen as little as 2 paragraphs dedicated to the Second Amendment in legal history papers from the 1970s. And those legal history papers were dozens of pages long.
Unless that ivy league lawyer has spent time in serious study of the Second Amendment. You cannot rely on that ivy league lawyer to tell you accurately, about your second amendment civil rights.
I’m not surprised that these government lawyers who don’t support your civil rights, don’t know anything about them either. Because it was never part of their required study program.
“All you have to know is just how little time a lawyer in school, spends reading about the Second Amendment.”
Expect that to change drastically.
I suspect they will start to argue that ‘Heller’ through ‘Bruen’ will be falsely taught as being erroneous decisions, and the lawyers being taught in law schools today need to be prepared to argue against it in preparation for when the high Court balance swings back in their favor.
And it will, eventually, be back under their control at some point. Our job, until then, is to bolster public support for keeping gun rights…
I think Levinson’s attempt to draw a distinction between “civic republicanism”, being the right to have arms to resist tyrannical government, and the right to self-defense against a criminal element, is futile. A well-worn page out of the dictator’s playbook is to use street criminals, gangs, and mobs to do his dirty work while his hands stay theoretically clean. It’s a simple matter of winding them up, and having police look the other way. Historical examples abound, from the KKK, to Interahamwe, to… more recent events.
TLAGIRI
(Too Long And Glad I Read It).
LKB deposited a near-law review article, all of it nota bene, adprimus.
However…..
Scholarly writings (and comments) have no place in an internet echo chamber (ah gots muh rights). I am set in my ways, and don’t want to be disturbed. Comments here should be short and sweet, restricted to “RTKBA” and “Shall Not Be Infringed”…or at least no more than three short sentences containing those phrases. Anything more is just keyboard confetti.
Ipso facto, ipse dixit, quod erat demonstrandum, PDQ, and XYZ.
Thanks. But this little essay doesn’t come ANYWHERE close to an actual law review piece (which I have done — see “Unenumerated Rights Clauses in State Constitutions,” 63 Tex.L.Rev. 1321 (1985)).
Thorough legal scholarship done honestly a-la Kates, Levinson, Amar, Kopel, Barnett, etc. is VERY hard work.
“Thorough legal scholarship done honestly a-la Kates, Levinson, Amar, Kopel, Barnett, etc. is VERY hard work.”
Which is why so much “scholarship” today is so shoddy.
Still, relative to an online forum, your article actually is “near law review” submission. Thanx for taking the time.
Maybe someday they’ll start applying the text history and tradition to the Constitution and Bill of Rights as a whole. As in, it’s a complete and exhaustive list of government powers and grants no rights to people, all rights are held by the people, or states, unless stated otherwise. Here are 10 examples. If it doesn’t say you can, guv, then you can’t. Until that happens I really have to look on the vast majority of the constitutional legal profession as absolute clowns in their little Potemkin village of law. We haven’t had anything resembling the rule of law for a very, very long time.
+1
No, make that + 1 billion.
Sometimes, in order to win, you have to play the game. It’s always a good idea to understand how others have won in the past.
Dude,
Your comment is 100% correct. And it frustrates me to no end because “playing the game” involves all manner of obscenities. The way that our courts often work is no better than the notorious Hollywood director and his “casting couch”.
LKB’s commentary largely describes in technical detail why the courts have been issuing obviously untruthful/unjust opinions. The reason that the courts have been issuing untruthful/unjust opinions (as LKB illustrated) is just as sad as it is infuriating.
“LKB’s commentary largely describes in technical detail why the courts have been issuing obviously untruthful/unjust opinions.”
Despite the original intent to protect federal judges from politics, all judges are political animals, and subject to political infections. at best a countable handful of judges can actually set aside politics, and determine what the law is, vs. “what it should be, could be”.
To make things clear, the notion of impartial “originalist” judges is, itself, a matter of politics. Indeed, being “impartial” is a political fiction. How is this so? Research the number of judges, all levels, who were not first lawyers. Lawyers go to law schools, which themselves have a partisan political core.
All is politics, and politics is all.
Federal judges are as political as they come. That’s how they’re known to be nominated in the first place.
The best way to Win is to take the ball away and not give it back. The first picture pretty much sums up what so many people that support the 2nd Amendment. Asking what part of ” shall not be infringed” the Liberal progressive democrats don’t understand. They understand they don’t care what the 2nd amendment says. Because as long as they are allowed to control the Narrative with the support of the Fake News media. It means whatever they say it means and as long as their acolytes keep listening. They control the clock in the game.
LKB –
As the high Court walked out the door last month for summer recess, they GVR’d 3 cases dealing with the 2A.
One, being (Bianchi v. Frosh), was an AWB. My question is –
Does that mean when Maryland finally hands down their decision, will the result apply nation-wide, since it was the high Court that granted cert. to it?
Or are we stuck with having to slug this out in every federal circuit court, one at a time, potentially taking decades?
A followup question –
Say Maryland decides to get cute in their ruling and require a firearm registry for semi-auto firearms with detachable magazines.
Can the high Court slap that bullshit down directly, or will it require years of expensive lawsuits until it drops into the high Court’s in-basket like ‘Bruen’?
Sorry, you’re thinking wishfully here.
If on remand the Fourth Circuit or the district court declared the MD AWB unconstitutional, it’s only binding in the 4th Circuit and only as to the MD law (although as a practical matter, any other AWB’s in CTA4 would likely be dead meat). AWB’s in other circuits will have to be squashed one by one.
But that has already started: last week, an Obama appointee nuked a Colorado city’s AWB as invalid under Bruen. And the Ninth Circuit is going to have to deal with the pending appeal of a Benitez decision, after a bench trial, that the Cali AWB failed both Heller *and* intermediate scrutiny. (Indeed, we may see the CTA9 stay of that decision get vacated in the near future, either by the Ninth Circuit or on mandamus to SCOTUS.)
As far as what to do with recalcitrant states who keep passing workarounds, it’s going to be whack-a-mole for a while. That’s just how the system works. Recall all the inventiveness that states employed post-Brown v. Board of Education to try and get around it.
IMO, what will be needed to stop such “resistance” are some 1981/1983 suits against the involved state actors, personally, for conspiring to violate the civil rights of gun owners . . . and that under Bruen, what they are doing violates clearly established law, so no qualified immunity. (The post-Bruen public statements of anti-gun politicians will be Ex.A that they are deliberately trying to evade/resist the law.)
LKB,
You have no idea how much I would love, LOVE! to see a bunch of 42 U.S. Code, Section 1981/1983 prosecutions/lawsuits.
Of course that requires the U.S. Justice Department to actually pursue/support such cases which you and I both know will never happen.
It is blatantly obvious at this point that the U.S. Justice Department is a Democrat Party institution which aggressively pursues all Democrat Party objectives and actively ignores all Republican Party objectives. That is why DEMOCRAT members of the U.S. House of Representatives like Jerrold Nadler can openly declare their intention to violate our civil rights–without fear of lawsuits and/or prosecution.
1983 provides a private right of action; indeed, the claims for monetary relief in Bruen (included to keep NY from mooting the case by just changing the law again) were under 1983.
No DoJ involvement needed. Hopefully, FPC, SAF, etc., will tack on 1983 claims against the NY / Cali officials for this in some of the pending test cases.
“If on remand the Fourth Circuit or the district court declared the MD AWB unconstitutional, it’s only binding in the 4th Circuit …”
Why?*
Circuit and appeals courts ruled against some of Trump’s executive decrees, claiming their decisions covered the entire nation.
*I agree with you, and expect Bruen will be litigated in every government, at every level, in every state and territory.
Simple. A final judgment declaring a federal law unconstitutional is collateral estoppel against Uncle Sam (collateral estoppel = “you lost the fight on this exact issue, so you’re stuck with that decision and can’t have a do-over in another case”). Thus such a decision can have nationwide effect.
OTOH, a ruling against an MD statute only affects the MD statute. The *reasoning* of the decision may be binding precedent that dooms other AWB’s in that circuit, but such precedent isn’t binding in other circuit.
Great run down on Profs Levinson and Kates. I will never forget reading by chance the Levinson Yale Law Review article as a third year law student (and budding 2A activist). It was like the sky parted and a voice came from the heavens. I knew without a doubt that the genie was out of the bottle, and the ridiculous reliance on Miller to quash gun rights was headed to the ashcan of history.
Yup. It is hard for people to understand what a truly seismic, incendiary event it was for Sandy Levinson — a reliable left-of-center academic and part of the Tribe-Amar-Levinson triumvirate of top dogs in constitutional theory — to call out the legal academy in 1988/89 for deliberately ducking the Second Amendment issue for political reasons (political reasons that he agreed with, BTW). Many of the initial “responses” to Levinson can be summarized as sputtering “but but but that can’t be because if that’s so, there’ll be rivers of blood because guns!” or even claiming Levinson must have been paid off by the NRA. Hardly reasoned legal analysis.
When other respected liberal academics like Amar, Powe, and even Tribe took up Levinson’s challenge, looked honestly at the historical sources, and started saying, “yeah, I guess there *is* an individual right here” (Amar’s work was hugely important here), the dam burst.
I’ll be curious to see how law schools will be teaching 2A as part of constitutional law courses going forward. Levinson, Volokh, Reynolds, and others have been teaching 2A cases as a way of teaching numerous constitutional doctrines for years. But I suspect that most will simply ignore it.
“I’ll be curious to see how law schools will be teaching 2A as part of constitutional law courses going forward.”
With the investment they have put in so far against the 2A, I predict a strategy of doubling-down and insisting the current Court came to their conclusion erroneously.
Which can be solved the next time the Court balance changes to the Left. Our job needs to be in the meantime to get public opinion on our side…
My main takeaway is that even the leftists closest to rationality and intellectual honesty hate the Constitution and determinedly ignore the facts regarding defensive gun use.
LKB@
“OTOH, a ruling against an MD statute only affects the MD statute.”
Aaaahhh. Thanx for the distinction: fed v. state.
LKB,
Thank you again for yet another highly informative article. The term “civic republicanism” is new to me, but the concept it refers to is quite familiar. In fact, despite how excited I was about Bruen, I was somewhat perplexed to discover that concept to be missing from the decision. It seems an obvious interpretation based on the simple wording of the amendment, and is only strengthened by the historical context.
NP.
When Levinson rolled out his civic republican thesis (which mirrored some of the arguments and historical citations Kates and others had been making), it blew the minds of many in the legal academy: the idea that the people can be lawfully armed to resist an overreaching government was anathema to folks addicted to big government solutions to everything. (It’s amusing to read some of the initial academic responses to Levinson, particularly from the Ivy League types whose knowledge/thinking of guns was pretty much limited to “should be banned.” As mentioned, some of these folks simply could not believe Levinson would seriously argue that, and so began the ridiculous calumny that Sandy must have been paid off by or otherwise in thrall to the NRA.
But as noted in the article, while Levinson continues to defend the accuracy of the civic republicanism thesis, he freely admits that judges are very unlikely to officially bless an interpretation that explicitly says “you get to have arms to resist the government if it turns tyrannical.” Politically, they just won’t do it, especially if you can give them an alternative way to get to the same result.
The broad nature of the Bruen test will likely make it unnecessary for courts to have to explicitly endorse the civic republicanism thesis. I think where we may see it pop up again will be in the context of challenges to AWB’s (and perhaps a subsequent challenge to the Hughes Amendment), where it may be alluded to in support of the thesis that historically it *was* intended and envisioned that citizens were allowed to possess “weapons of war,” and thus AWB’s fail the THT test.
“in support of the thesis that historically it *was* intended and envisioned that citizens were allowed to possess “weapons of war,” and thus AWB’s fail the THT test.”
Didn’t Scalia declare that the arms protected by 2A are those useful for military purposes? A declaration that left the NFA intact?
2A protects “arms”, not guns alone. Would courts today declare that sabers are no longer useful for military purposes?
Do SC justices make it a priority to find ways to not review cases? Why are they seemingly hung up on “process”? For instance, any gun control law infringes on the Second Amendment. Where to SC justices find authority for looking further than that; dissecting process underlying the infringement on all laws.
The 1st Amendment (what part of “Congress shall make no law…” don’t judges and justices understand?) analyses applied to allow government control of speech is another case of trying to find a way to avoid actual constitutional review. The courts should have no comment on the social impacts of constitutional protections, only whether the central government remains within its delegated powers. I find nothing in the writings of the framers that intended the Constitution to be implemented/restricted by degrees.
Having read the author’s referenced works by Kate and Levinson years ago, I agree, we owe them a debt for establishing the grounds by which we fight Infringement of the 2nd.
For myself, I lean strongly on the writings of the various Founders concerning the RTKBA. To a man, their writings establish that the 2nd is in fact two clauses, and there’s much more discussion between the Founders that the second clause indeed establishes the Right to Personal Ownership. To me, their intent was obvious, and anyone denying their intent is obfuscating.
Gun Control, has been both Racist and Elitest from its very beginnings. Every Law limiting/Infringing the Right that was passed since ratification of the 14th Amendment illustrates this over and over. Gun Control sought to deny African Americans and those of lower socioeconomic status Immigrants and the poor) the RTKABA.
The NFA and all subsequent legislation has “amended” the 2nd Amendment. Those Acts and Laws were and remain Unconstitutional as Congress does not hold the power to amend the Constitution per Article V of the US Constitution. That power resides solely with the State’s Legislatures. Any Amendment or amending/changing of the Constitution requires the the ratification/approval of 3/4ths of the State’s Legislatures, and Congress Unconstitutionally ursurped that power. The SCOTUS Courts that allowed the legislation to stand were and remain in error.
Great Article. I enjoyed reading it.
Thank you
Whew – lots of comments to wade thru – when I saw the line in the original article about “constitutional theorist” I had an immediate thought flash thru my head about a gaggle of theologians arguing about how many angels can dance on the head of a pin. IMHO there really is no argument/theory about the 2A – it says what it means and means what it says, like the rest of the Constitution. Several comments said that a 3rd grader can figure it out, one said it would be an 8th grader 😉
Regardless, it seems that too many liars oops lawyers simply need something to argue about to justify their existence. Us plain old ordinary people who are not fooled – or impressed – by legal gobbledygook have no problem ‘interpreting’ any aspect of the Constitution.
I hear you. But “plain old ordinary people” aren’t the ones with the power to declare laws unconstitutional. That’s going to be federal appellate judges, and like it or not they are almost always going to be more persuaded by arguments from the clerisy than the masses, even if both groups are ultimately saying the same thing. That’s just reality.
Kates pointed out that in the 1970’s/early 1980’s, while the monolithic view of the courts and mainstream legal academy rejected the individual rights position, a huge majority of the American people did not. Yet despite that huge imbalance, nothing happened . . . until Kates, then Levinson, then Amar, etc., weighed in, and then the worm turned.
“…Nothing happened”.
Doesn’t mean the people weren’t ‘able’ to make something happen, it just means that they weren’t up and clear on what was really going on. Doubtless, not many even knew what was happening on the lofty plateau of our power elite.
Kind of like when the neighbor asked the Amish guy why his dog was moaning and groaning. The Amish replied that the dog was laying on a nail. The neighbor said, “Why doesn’t he just get up off of it?” The Amish man replied: “It just ain’t hurting him enough, yet.”
Seentoomuch,
I agree with everything you wrote, but would add that “establishment” includes governments at all levels, not only businesses.
@Guardian Angel
“Not get bogged down with interpretations and ‘facts’ of past Statesmen”
Right on, Brother; Right on !!
Truth over facts. Truth over facts. History clearly shows that when people get involved with facts, chaos of the mind results; resulting in chaos of thought. Stick to the truth; screw everyone who seeks facts and context.
BTW, anyone who doesn’t agree with me about everything is stupid, evil, wicked, mean, bad, and nasty.
And stupid.
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