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Ohio Supreme Court Justice Expresses Doubt About Appellate Decisions About History in Second Amendment Cases
But wouldn't the arguments in the dissent equally cast doubt on all historical analysis in constitutional cases, or even statutory or common-law cases?
From yesterday's Ohio Supreme Court decision in State v. Philpotts, where one underlying question is whether a ban on gun possession by people who have been indicted but not yet tried for a "felony offense of violence" or felony drug offense violates the Second Amendment:
Sua sponte, parties ordered to file supplemental briefs [within 14 days] addressing the impact, if any, of New York State Rifle & Pistol Assn., Inc. v. Bruen (2022). Supplemental briefs are not to exceed 20 pages, and each side's brief shall be filed within 14 days….
Justice Jennifer Brunner dissented:
… I dissent because even considering whether to apply Bruen at this juncture implicates determining the United States' historical tradition of firearm regulation in relation to Ohio's gun laws. This will require the presentation of evidence that should not be examined in the first instance at the appellate level on an order for supplemental briefing. Determining what the historical record shows in relation to Ohio's gun laws involves determining facts, and the facts should be developed in and determined by a trial court, not an appellate court, especially when the parties have not made relevant arguments to support this examination nor requested that we make it.
Further, I have concerns about how "history" or historiology can become part of a legal analysis, as this court embarks on the legal equivalent of asking whether a modern translation of the Bible accurately conveys the teachings of the original texts.
History changes over time as historians uncover and analyze new information learned through the finding of artifacts, writings, photographs, and new methods of historical analysis. The National Council on Public History, headquartered on the campus of Indiana University-Purdue University in Indianapolis, writes:
People who are not professional historians sometimes assume that historical research is a once-and-for-all process that will eventually produce a single, final version of what happened in the past. We often hear charges of "revisionism" when a familiar history seems to be challenged or changed. But revisiting and often revising earlier interpretations is actually at the very core of what historians do. And that's because the present is continually changing.
The kinds of people "doing history," the kinds of questions they ask, and the tools and materials available to them are anything but static. It's not simply that new facts come to light, but that the shape and meaning of historical events look quite different from different vantage points and time periods.
Historians recognize that individual facts and stories only give us part of the picture. Drawing on their existing knowledge of a time period and on previous scholarship about it, they continually reevaluate the facts and weigh them in relation to other kinds of information, questions and sources. This is inescapably a task of interpreting rather than simply collecting data. Just as with any important shared body of knowledge, then, history is always undergoing reexamination and reconsideration. (Emphasis and boldface sic.)
Determining what is "history" often starts with an examination of what are termed "primary sources." Primary sources are similar to what is typically demonstrative evidence in a trial. Primary sources of history may be items such as letters, reports, photographs, artifacts, maps, posters, cartoons, videos, sound recordings, and artwork. See National Archives, "Understanding Perspective in Primary Sources."
Primary sources are "the documents or artifacts closest to the topic of investigation. Often they are created during the time period which is being studied * * * but they can also be produced later" by eyewitnesses or participants through memoirs or oral histories. {The National Archives instructs that primary sources require fact-checking, which includes analyzing whether "other sources support or contradict" what is understood from the source. The National Archives also instructs that the researcher should take care to understand what other perspectives should be obtained and engage in honest self-observation of the researcher's perspective, including the researcher's background and the time in which the research takes place.}
It is doubtful that this court would examine primary sources in this case in determining the United States' historical tradition of firearm regulation as it relates to gun regulation in Ohio. If we were to do so, our examination of these primary sources for history would require us to draw inferences, as a fact-finder must, and then use them to establish facts upon which to base law. Such an examination would result in our opinion in and of itself becoming a secondary source of history.
But by declining to examine primary sources for history, our review would be relegated to secondary sources, which are "interpretations of events written after an examination of primary sources and usually other secondary sources, such as books and journal articles." Reviewing only secondary sources of the United States' historical tradition of firearm regulation will still require that we factually judge whether inferences drawn by one expert from primary and secondary sources of history are superior to inferences drawn by another, recognizing that expert opinions often differ. Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation's history, including how and why guns may have been regulated.
Importantly, the glaring flaw in any analysis of the United States' historical tradition of firearm regulation in relation to Ohio's gun laws is that no such analysis could account for what the United States' historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations. How would this problem be addressed in any modern analysis of historical gun regulations? It cannot simply be ignored. And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made?
Further complicating the issue is the fact that, in his opinion for the United States Supreme Court in Dist. of Columbia v. Heller, Justice Scalia opined, based on the "'necessity of self-protection to the person,'" that any such regulation was not even necessary and that the Second Amendment has been understood as securing an individual right unconnected with militia service.
And most troubling is that in Heller, Justice Scalia seemed to scorn history or the application of a textualist analysis:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
To the extent that Bruen may implicate this case, it would be more appropriate to remand it for an evidentiary hearing by a trial court, which could then be followed by appropriate appellate review, would facilitate a more thorough and accurate decision concerning the Second Amendment to the United States Constitution. For the reasons stated above, I respectfully dissent from the order of the majority that directs gratuitous, ill-advised, and unnecessary briefing in this matter at this juncture.
My thought: Some of these points may be apt to some extent, but American judges have long considered history in interpreting the Constitution, in interpreting statutes, in understanding and developing common-law principles, and more. Even judges who might think that the Court has turned too much towards history in its Second Amendment precedents—or other recent precedents, such as those dealing with the Confrontation Clause, the Fourth Amendment, and more—generally think that history is often highly relevant to judicial decisionmaking, even if it shouldn't be dispositive. And they've pretty consistently thought, I think, that this history should be determined by appellate courts, rather than by trial courts hearing live witnesses at evidentiary hearings.
Perhaps they were mistaken; but it's hard for me to accept Justice Brunner's conclusions here without thinking more about how they would play out in that vast range of other cases, and for the many judges who do think that history is relevant to much legal decisionmaking.
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If examining history is too much of a burden or too inexact for these judges, then stick with the plain language of 2A and other laws.
History too unknown is evidence too unknown to support a historical, regulatory exception to the plain text.
It’s amazing that a judge would even remark on the fan fiction she might imagine if rules were made by different people historically. If she wants to be the judge of a creative writing contest, she should do it in her off time.
That would be common sense, and imply that governments are islands of coercion in a sea of liberty.
I understood Bruen (IANAL) to say:
* If you can find relevant historical precedent for your anti-2A law or regulation, go for it.
* Otherwise "shall not be infringed".
No, it said "otherwise, some historical fantasizing leads us to believe that it's all about personal self-defense and not militias at all."
The Supreme Court abandoned the text of the Second Amendment in Heller and doubled down in Bruen, based on bad history. We need a return to the text i.e. Miller.
Miller was a terrible decision, on the facts, and on the logic. First of all, there was no defense present (Miller was already dead - the case should have been moot).
Secondly, Miller relied on the decision by the court that there was no evidence presented (there was NO EVIDENCE PRESENTED AT ALL) that short-barreled shotguns were military equipment. In fact, they were, they had been used by the US Army in WW1 in the trenches.
At least Miller asked the question about military equipment! Heller took military / militia considerations off the table entirely.
Heller was concerned with an individual's right to keep arms for individual self-defense. It's scope was explicitly aside from a purely militia purpose. So it is not surprising that the arms a person may keep as protected by 2A was discussed in that specific context, as opposed to the broader context which would include the individual right to keep arms for defense of the laws, the states, and the united states.
True, which is why it's all the more surprising that Scalia went out of his way in the Heller opinion to undercut the militia purpose, especially after it had been central in Miller.
Because the plain meaning of the Second Amendment is not about militia or military. The entire prefatory clause can be deleted without changing a damned thing in the meaning
Of course! There's so much extraneous text in the Constitution.
Keep telling yourself that. In the meantime, Egregiously Wrong!
Agree the 2nd amendment’s text connects an individual right to keep and bear arms to a state’s right to maintain and regulate a militia. And Scalia’s opinion, which completely separates the individual right from the militia context, is anti-textualist judicial activism.
The fact the court has doubled down on this interpretation doesn’t change that.
"connects" is doing a whole lot of work there.
In fact, the text of the second amendment does not restrict the right to keep and bear arms to militia service. Even the linguistics professors writing in favor of gun control admitted this.
Duh. None of the rights in the Constitution are "restricted," but that doesn't make them absolute.
Each right exists for a purpose. Libel is illegal, which is ok since it doesn't further the purpose of the first amendment much.
The purpose of the second amendment is explicit.
Claims that a whole clause of the constitution is pure surplussage violates a basic canon of interpretation.
And an interpretation that depends on a whole clause of the constitution is pure surplussage is a textually illegitimate interpretation
The plain language must be understood in historical context based on the historical meaning of words and phrases.
For example, if quartering as in placing people to live in a location leaves the English language, should we interpret the Third Amendment to prohibit cutting soldiers into four pieces in a person's house without his permission?
Of course we should continue to use the original definitions of words and phrases. Modern originalism, especially Bruen and Dobbs, go way beyond definitions into assuming that the meaning and purpose of every aspect of the Constitution was to cement then-existing practices in place for all time. It's a position totally at odds with the ambiguous-yet-aspirational nature of the Constitution as a set of principles that make up a framework. The principles and the framework don't change, but the context changes over time, and therefore so too their application. Originalism misses the point entirely.
And that's leaving aside the fact that originalism is unworkable even in its own terms, as the OP suggests.
“ assuming that the meaning and purpose of every aspect of the Constitution was to cement then-existing practices in place for all time. ”
Until amended. Yes?
Uh... that's the nit you want to pick? I intentionally chose extreme phrasing. Even Scalia would have objected to the idea of cementing things in place, given his analogy-based approach to originalism. But ok sure, "until amended."
I guess I was even more right than I thought!
So, you want to amend the 2nd Amendment?
Have at it. All it takes is 2/3 of each house to agree, and then 75% of each state.
Why is it gun-banners have never achieved this? Because the majority will not stand for it. So they try and get the courts to force their unconstitutional desires.
If it should be decided by a trial court as a question of fact, does that mean that the appellate court must affirm unless the trial court's "findings" were clearly erroneous? Having one person decide and then having a panel give that decision great deference seems inferior to having an appellate panel decide the issue de novo.
So yeah, let's eliminate the waste-of-time trial courts and just have the appellate courts decide everything.
What was the legal effect of an indictment back in the day? Now it is common to release a defendant on condition that he not do certain otherwise legal things.
"Importantly, the glaring flaw in any analysis of the United States' historical tradition of firearm regulation in relation to Ohio's gun laws is that no such analysis could account for what the United States' historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations."
So it isn't enough to know what historical facts were, we also need to address alternate history.
Perhaps they could also be briefed on what gun laws would have been if the Spanish Armada hadn't been wrecked by a storm, or what if Charles I and James II hadn't been deposed and parliament never won it's battle for civil supremacy against Scottish monarchical absolutism and the English Declaration of Right had never been promulgated.
What would our gun laws look like if the Nazis won WWII?! This is important!
Well, according to my extremely accurate alternate-history simulator Sid Meier's Civilization VI, if gunpowder had been invented by scientists working for Menelik the 2nd of Ethiopia in 330BC, we would have already settled Alpha Centauri.
We would have settled on a star? That's some eye popping alternate history!
On the moon, or on Earth?
Nazi's on the moon? Wait, I think Charles Stross covers that.
Submachine guns for Scandinavians. Pistols or automatic rifles for other whites. Black powder muzzle loaders for blacks and Jews. Semi-automatic rifles for the rest.
So it isn't enough to know what historical facts were, we also need to address alternate history.
Not what Judge Brunner is saying. She is saying two things, really:
1. Without adjustments for different-than-today's historical context, your present-minded analysis can only deceive you about what the historical facts were.
2. Without historical training and experience, it is hopeless to suppose anyone can undertake those adjustments without introducing flawed reasoning and logical contradictions.
In short, original historical evidence can enable more-accurate inferences about what happened in the past, but only if interpreted within a framework which not only captures historical context accurately, but also excludes present-minded context completely. A notable problem with present-minded context is that it consists almost entirely of mental furniture stacked up during the interval which came after (for instance) the founding era. That means almost everything present-minded people think is built on premises of occurrences which founding era figures never knew about, because those occurrences had not yet happened.
Present-minded people do not think like historical figures thought, so present-minded people do not understand what their words meant to them when they wrote them. Just as a for-instance, the notion of, "gun control," as a public policy issue is utterly absent from founding-era thinking. That style of thought had not yet been invented. If you ever encounter anything written in a legal opinion which purports to analogize a founding era event or practice to any issue related to modern gun control, you are looking at a historical non-sequitur. Nevertheless, practical legal actions which can look almost exactly like gun control to us were commonplace then, and spotted throughout the historical record. Problem is, the ideas which justified those actions had nothing to do with gun control. A present-minded person has no idea what to make of that, or how to do any principled thinking about it at all.
A person who lacks historical training is inevitably present-minded, without being aware of it. Getting rid of that pitfall is one of the principal objects of historical training. If you haven't done it, a presumption that you can read a partial historical record, and pronounce it, "enough to know what historical facts were," is pure foolishness.
Judge Brunner pretty clearly gets that. I am impressed, because that kind of insight has been almost non-existent in the legal community.
My mental furniture is a couple of stackable plastic chairs and a card table.
I am shocked, shocked that Stephen Lathrop is (positively) impressed by a judge who demands alternate history.
Yup, the people who spent years debating the appropriate checks and balances between branches, who were the first to enshrine a number of freedoms, and who granted Congress the power to provide for the general welfare, had no idea that government might want to consider how to address social issues through government action!
Or maybe the person who has a distorted and context-impaired idea of history is Lathrop.
Michael P — You are mistaken to suggest a demand for, "alternate," history. What you read is a reasonable and historically valid insistence that historical context must be taken whole, or if not, historical examples based on deliberately restricted social context should not be analogized to modern circumstances with broader social context. That is what Brunner told you when she wrote, "How would this problem be addressed in any modern analysis of historical gun regulations? It cannot simply be ignored."
Getting that bit wrong is a conspicuous flaw in Bruen's attempt to prescribe a method to analogize past and present cases and circumstances. Bruen not only does ignore what Brunner said it should not, it insists in so many words that everyone should ignore it. The spurious reasoning Bruen offers is that the overt racism and sexism of bygone days are now gone, so no consideration of their effects at the time can be included in a present-day historical analysis. Whatever that twisted reasoning delivers, it is not an analysis based on history and tradition.
Dressing up the demand for alternate history in a lot of empty words doesn't change its nature.
Unable to follow the conversation, huh. That's ok.
https://memegenerator.net/img/instances/66975565/too-many-words-they-hurt-my-brain.jpg
Look, another person whose accusations are confessions!
Posting memes doesn't make empty words any less vapid. Lathrop complains about twisted reasoning, yet he demands that we inject alternate history into our own.
Michael P — Ipse dixit does not gain strength by repetition. Nor is it likely to reflect credit on someone who ignores what he either prefers not to understand, or cannot understand.
I will continue to try to help. Your problem—a problem shared by almost everyone who never attempted to read original historical sources—is that you think it is a simple process. You suppose you look up in an archives some facts from the past, and cart them back to the present to use as evidence to decide legal arguments.
What that leaves out is that you, or anyone, can initially have no notion whether what you find are facts. And you haven't a clue about what methods can be used to sort that question out. You probably think you can tell facts from other stuff by looking at them, or critiquing them with an eye to modern English language context, which is the only critical equipment you have available.
By effort, study, and cumulative experience over many decades, other people have acquired more and better equipment, but you disparage them, heedlessly. Philosophers of history have written careful consideration of those questions (historiography)—undoubtedly too wordy for your preferences.
If you did read historiography, and could understand it (understanding is quite difficult for anyone without notable experience encountering centuries-old survivals from a time utterly unlike his own; it takes that background to alert the student that a problem exists, and put him on course to wondering what the solution could be), you could discover that your method not only does not work, but is guaranteed to mislead, and to deliver logical contradictions.
And, as I already mentioned, your botch of a method is the standard, commonplace, widely accepted standard in the legal profession. So you feel comfortable to be in plentiful, specialist company, however historically benighted and blunder-prone they may be. To be wrong together among a crowd of others is so much easier than trying to do better despite their chorused objections.
That is you, now. You do not have to stay that way, but making the change would not be comfortable for you until you learned enough to understand why that change is really needed.
There is no good reason why women and slaves, had they been allowed to vote, would not have believed in a broad right to keep and bear arms, just as the men who wrote and adopted the second amendment did. They were all inhabitants of their particular time and place.
That may well be a conclusion that would seem reasonable in a counterfactual history. Once again, a demand for counterfactual history is no part of this discussion, except as a red herring dragged in by right wingers.
You changed the subject from the post you are replying to.
Oh my god come on Kazinski, you have a better reading comprehension than that. The point is, of course, that it would be absurd to account for alternate histories, but at the same time, it's a fallacy not to account for them. In other words, the whole enterprise is doomed.
The fallacy is that amendments have been made, and amendments override history. In fact, an amendment can be seen as a referendum on the historical context. It effects a change. What are the implications of that change? It's impossible to project the change back in time to find out. Sometimes, like with the 14th, we try to sort of superimpose the history around the time of the amendment onto the history around the time of the founding, as if we can do math on the different histories and come up with an answer. (Even Barrett called this out as being pretty silly in Bruen.)
But really, we need to do the same thing, in theory, with all the amendments. To understand the effect people thought the 15th amendment would have on gun rights, we need to look at the attitudes that people had towards guns and slavery after the Civil War, and imagine those attitudes superimposed on the attitudes of the founders.
It's a stupid exercise, is the point. But if we don't do it, we're not giving proper effect to the amendments. We're myopically focusing on the original Constitution and the history of the founding era, as if the amendments didn't exist.
In Bruen, Thomas, quoting from Scalia's McDonald concurrence, writes, "To be sure, "[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.""
Brunner appears to be arguing that the "evidence" which judges are to consult in a Second Amendment case should be in the form of primary sources, as opposed to law review articles cited in appellate briefs. These primary sources constitute relevant "facts" in the case, and the Second Amendment is applied to those facts to reach a conclusion.
I think the argument highlights an issue with the fact-intensive standard created by the Court in Bruen. Thomas' opinion repeatedly uses the term "evidence" when talking about historical inquiry in a Second Amendment challenge. The central issue underlying a Second Amendment challenge is the historical record, and that record is identified by examining the evidence. But that evidence is used to interpret the meaning of the Second Amendment, so its a question of constitutional interpretation as opposed to a question of fact. It just so happens, that the interpretation requires the appellate judge to wade into a historical ocean of facts, determining for themselves which ones to consult and which to ignore.
Given the fact-intensive constitutional analysis required, it might be more efficient to just have appellate judges decide the case in the first instance.
QuantumBoxCat — Do you suggest bringing historical experts before the appellate court, to educate them about the methods of historical reasoning, and guide their factual winnowings? It appears on the basis of typical appellate practice that a legal education imparts a profoundly anti-historical bias—reinforcing even the usual present-minded bias which is the rule among historical laypeople. It is not likely that the time necessary to undo that will ever be found in the busy schedules of the appellate courts.
"Historical experts" are free to ask leave to submit amicus briefs as guidance to the court. But I hope we never see the day when wackademic historians get to dictate to any court that their own version of history is the only one that may be considered.
Because wackalegal judges know more about historical methods than wackademic historians? Or because the only way to get to where you want to go is just to put the question into the hands of prejudiced judges who agree with you?
No, Brunner is saying that trial courts develop a factual record, and appellate courts seldom adduce new facts to guide their review -- the appeals process is limited to the record of facts that was produced at the original trial.
Those facts will often come from primary sources because they relate to the specific case. However, general facts can also come from expert witnesses, whose qualifications are weighed before they testify, and in exchange can make broad statements about scientific facts and understanding. The same process can apply to historical facts. Courts are not expected to do the kind of research that you are concerned about.
Thomas points out that history can be used to support or oppose any agenda. On this point, she is correct.
The dissent lost me here:
"And most troubling is that in Heller, Justice Scalia seemed to scorn history or the application of a textualist analysis:
'Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding'"
Scalia is not being dismissive of history. He's saying that reasoning by analogy from historical to present day technology is reasonable and well-established in other areas of constitutional law. ie, the fact that private citizens legally owned cannon in the 18th century probably has something to say about the understood scope of the 2nd amendment at the time, and the reasonably equivalent weapons today are, well, reasonably equivalent, and should be treated similarly.
Scalia: "We do not interpret constitutional rights that way."
...except that you do when it comes to "cruel and unusual punishment", you rotting POS.
Well that escalated quickly.
When did he do that?
Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation's history, including how and why guns may have been regulated.
A point so obvious it should long ago have occurred to every commenter who is aware that trial courts determine facts, and appellate courts review and apply the law. As I have said repeatedly, when an appellate judge doffs his robe, climbs down off the bench and repairs to the historical archives for research, he is not there looking for legal precedent. He is looking for evidence to decide the case.
In context of usual judicial practice, that ought to be regarded as shocking impropriety, but instead gets a pass because, "originalism." Which explains nothing, and argues nothing, except insistence on the validity of this one exception to standard judicial practice. The dissent gets this exactly right.
Because so much time and originalist advocacy have gone by without sign of historical insight in the legal community, I am astounded by this judge's reasoning and insight into historical problems. It closely approximates at several key points what a trained academic historian would typically say. Needless to say, the comments above reflect mostly the previous historically benighted status quo, and, as always before, utterly fail to grasp standard principles of historical reasoning.
Perhaps Judge Brunner is cheating, and commenting on the basis of some kind of actual historical training. If not, her instincts and alertness to pitfalls commonplace in reasoning about the past do her great credit.
Its absurd to think that appellate courts can't examine the historical record at least as well as trial courts, especially with the assistance of amicus briefs. Such a large part of the historical research is the statutes and precedents of the era, which is right up the alley of the appellate courts which have a lot more resources and time.
The traditional role of trial courts in fact finding is based on having live witness testimony, which isn't really a thing for historical research cause really its all hearsay.
Help me out here Kazinski. Is it customary in appellate courts to cross-examine the authors of amicus briefs? Is that ever done? If so, maybe you have a point. If not, then the trial court is the only place for the kind of give and take necessary to make clear to historical laymen (including judges) which witnesses can speak with authority, and which cannot.
Also, actual historical research is not necromancy. None of it is hearsay. All of it is about developing a narrative in which historical survivals still in existence critique each other, to enable the best possible inferences about a passage of history which has not survived. At no point are actual historical figures involved in the activity.
You should really just stop presuming you understand history.
Appeals courts address questions of law all the time, and what is common law except a question of historical facts and understanding, as modified by more recent legal statutes or constitutional amendments?
The specific analysis called for by Bruen is largely the same kind of analysis that appeals courts do as their main function.
what is common law except a question of historical facts and understanding
Hahahaha this is the most succinct criticism of originalism yet. I totally agree, common law already captures the legally relevant history in a legalistic form, suitable for legal analysis. So why do we need to go around common law and consult the history books afresh?
Hint: to engage in a fishing expedition in support of a preferred outcome.
Whereas living constitutionalism decides to throw all that out in order to go on a fishing expedition based on supposed changes in what words mean?
You might want to consider, even for a moment, how your criticisms apply to positions held by your side.
Completely agree. But I'm not a living constitutionalist. I think it's been pretty much dead since Al Gore... Breyer may have been the last, and even he was more "practical textualist" really.
These days, the conservatives are the judicial activists via the infinitely malleable history-and-tradition test along with the Egregiously Wrong Doctrine.
Do we really need professional historians to find the fine details.
approx 70-75% of the historical writings discussed the right to keep and bear arms for purposes of common defense
Another 20-25% of historical writings discussed the keeping and bearing arms for common defense and the individual self defense
and approx 5-10% of historical writings discussed the right in terms of self defense
An important point - there is no historical writing (at least no known historical writing) which discussed limiting the right to keep and bear arms to serving in a militia or for times of common defense.
In summary -
A) to what extent are professional historians required to interpret the documented historical writings
B) Stevens was quite dishonest in his heller dissent when he denied the existence of the documented historical writings regarding the individual right
Joe_dallas, that is not what Stevens did, and the rest of what you cite is mistakenly reasoned. The problem in Heller was the meaning of the U.S. Constitution, including the 2A. As Stevens knew, and gun advocates apparently never learned, evidence of other kinds of protection, elsewhere, for a personal right of self-defense with a gun does absolutely nothing to make a case that the Federal Constitution was drafted to protect that right. And in fact it was not, as the historical record shows plainly. That does not mean no one has a right to a gun for self-defense. It does mean that the U.S. Constitution is not the place to look to get that right vindicated.
A) as I stated, there was considerable discussion of the individual right, granted, there was considerably more discussion of the right for the common defence. Just because there was more historical writing on the right to keep arms for the common defence does not mean that the historical writings for the individual right to keep and bear arms for self defence did not exist - as implied by stevens in Heller.
B) Your response that 2a does not include the individual right ignores the plain reading of 2A "... the right of the people to keep and bear arms shall not be infringed."
Please explain what that passage means if it doesnt cover the right of the people to keep and bear arms.
fwiw - the 2 rights protected in 2A are not mutually exclusive A) the right to keep and bear arms for the common defence in the first clause, and the individual right in the second clause.
Joe_dallas — You repeat yourself. Once again, Stevens did not reject the notion of arms for self-defense. He confined his reasoning to the Constitution, and its meaning, which he should have. Unlike gun advocates, Stevens was at least sufficiently acquainted with the notion of historical relevance to make the needed distinctions.
That, "considerable discussion," you mention was all about stuff that did happen, but at times and in places irrelevant to drafting the Constitution and the 2A. You cannot show otherwise from the historical record. If anyone could do that, Scalia would have done it, and made those citations his centerpiece. Instead he resorted to a disorganized melange of irrelevancies as his method of argument. He had no choice. The relevant historical evidence was against him.
What Scalia did accomplish amounts to the construction of a broad-strokes history and tradition argument that a right to keep and bear arms for self-defense can be regarded as constitutional now. That can be critiqued too, but at least on that basis it remains a respectable argument.
But when you find yourself citing evidence about a historical event, and choose evidence which dates years after the event in question, that is a big clue you are doing it wrong. The argument that the U.S. Constitution established that right is bogus. There is no historical record for it. There is a powerful record on behalf of the militia purpose, and that is all it takes to relevantly justify all the arms-related citations in the Constitution.
That can be bolstered further by a simple historical observation. The founders avoided again and again during the drafting of the Constitution and amendments any subjects which would tend to divide the northern and the southern states. They knew they needed unity to get ratification. That meant leaving multiple controversies by the wayside. There is no conceivable language for a personal right to self-defense with a gun which would not have divided those factions. The founders tacitly decided to let those issues be settled variously, state by state.
For historically well-supported vindication of a right of armed self-defense, look to your state constitution.
SCOTUS in US v Miller looked to the right to arms provisions of the various states as you suggest above, they did so to determine the scope of the second amendment. But Stevens said that those state provisions were not relevant, he favored selective history.
Hansberry, Stevens was not a historian, but all historians favor selective history. Selectivity is the very essence of the activity.
What is the activity? It is to study survivals from a long ago era, to make them critique each other, and thus enable well-qualified inferences about a passage of history which has not survived. Self-evidently, some survivals will bear on questions relating to arms and their governance at a particular time and particular place. Others will not. As an obvious proof of that, everyone should understand that purported evidence which post-dates the period under study, or which applies only in a different geographic context, must be dismissed as irrelevant.
Thus, selectivity is indispensable to winnow the evidence which does apply from other candidate evidence which does not apply. To insist otherwise is to insist on chaos and error.
Standards for how that winnowing can be accomplished by valid methods are a central part of the technique for getting it done. Gun advocates, especially including Scalia, seem not to be aware of those standards. You cannot sensibly insist that everything you can find about guns, in every historical reference to any place, at any time, in pursuit of any purpose, is relevant to what the U.S. Constitution intended.
Also known as evidence barring.
Stevens simply waves away evidence contrary to his claim. A neat trick, for a historian or mere judge.
But the individual right in the second clause isn't for self-defense.
The original regime was: in order to ensure states' ability to do militias, the federal government will be prohibited from infringing individuals' right to keep and bear arms (as may be needed for militia-related purposes, not for robbing banks, hunting, or armed self-defense).
That gets a little weird once you try to enforce the second amendment against the states. Now a state has to respect an individual right to bear arms for the purpose of its own hypothetical militia that doesn't necessarily exist. But... ok, there are still reasons that makes enough sense to be fine.
But nowhere does armed self-defense enter the picture, except in Scalia's "broad history and tradition argument." Which itself has been debunked since Heller in terms of accuracy, even if you believe history-and-tradition arguments are legitimate constitutional interpretation tools in the first place.
States' rights are only found later in the Bill of Rights. As the structure of the Second Amendment makes clear, it protects an individual right.
If it envisioned allowing government to restrict who could be a member of the militia, and thereby who could keep and bear arms, it would have been written differently.
Randal
September.10.2022 at 7:54 pm
Flag Comment Mute User
"But the individual right in the second clause isn't for self-defense."
WTF?
both you and lathrop Are ignoring the historical writing for both the common defence and self defence
further there is no language in 2A limiting the right to serving in the militia
Further there is no historical writing even discussing limiting the right to only serving in the militia. Note had there been any discussing limiting the right, then there would have been considerable writings on the topic
Both you and lathrop ( of historical expertise) have to create a version of history that never existed.
both you and lathrop Are ignoring the historical writing for both the common defence and self defence
And I say it's you who are doing that, or at least cherry-picking, misinterpreting, and misapplying it. The history is clear that a) "bear arms" never referred to individual self-defense and b) the drafters of the second amendment didn't intend it to.
further there is no language in 2A limiting the right to serving in the militia
I mean, there kind of is, but that aside, there's no language limiting it as to armed robbery either, so that's no argument.
Further there is no historical writing even discussing limiting the right to only serving in the militia. Note had there been any discussing limiting the right, then there would have been considerable writings on the topic
I think the problem here is that you keep looking for a limit. Rights aren't generally scoped by explicit limits. You don't see the various free-speech exceptions listed out in the first amendment. Rights are generally scoped by purpose. We know what the purpose of the right to free speech is, and so we can regulate speech (libel, incitement, obscenity, etc.) as long as the regulations don't impede the purpose.
The second amendment tells us explicitly what the purpose of the right is. We don't even have to guess. So we can regulate an individual's right to keep and bear arms as long as the regulations don't impede the purpose of enabling an effective, well-regulated militia i.e. common defense. It's all there in the text.
(as may be needed for militia-related purposes, not for ... armed self-defense).
The above text appears nowhere in the second amendment, it is a figment of your (and justice Stevens') imagination.
The relevant question is this: what was understood to be the scope of the right to keep and bear arms when the second amendment was ratified?
The answer is that the right encompassed a broad individual right to have arms for defense of self, home, community, the laws, state and nation.
the right encompassed a broad individual right to have arms for defense of self, home, community, the laws, state and nation
No, that's the text that's not in the Constitution. The militia stuff is right there.
You guys have been confused by the idea that the militia purpose is somehow incompatible with individual rights. I don't know where that came from but it's a false choice. You can have an individual right to be prepared for and to participate in the common defense. That's what the second amendment literally describes.
neither is anything in 2a limiting the right to military purposes
neither is anything in the historical record limiting the right to military purposes
Stevens interpretation amounts to a responsibility to comply with the government requirement to keep and bear arms. Seems absurd to include a requirement of the people to comply in the bill or rights protecting individual rights.
Stevens makes the absurd claim that the right of the people to assemble or the right of the people to petition the government in 1A as a collective right - as if a single person could not peacefully assemble to protest. See Stevens dissent in heller
I'm not a superfan of Stevens's Heller dissent, there are good and bad things about it.
I do find the idea of a mandate to keep arms to be pretty funny in light of the right's ACA freak-out. I think their heads would explode.
the legal arguments in ACA and 2A are not even remotely similar
I am only partly a fan of Scalia's opinion - but in his defense, the right to form militias/the collective right was not before the court. so to the extent he got that wrong, it is moot.
Stevens on the other hand misrepresented numerous passages of historical writing.
My reference to mandating service in the militia is due to the Stevens twisting of several historical writings implying that the exception to the requirement to serving in the militia was limited to those opposed to the usage of all arms. (as part of his argument that 2A only protected a right to keep and bears arms only when serving in a militia, he made implications that service could be mandantory)
The relevant question is this: what was understood to be the scope of the right to keep and bear arms when the second amendment was ratified?
No. That is absolutely not the relevant question. I will grant you that it is the question Scalia posited tacitly by his style of argument. And you bought it.
But the relevant question is, "What evidence exists to show the purpose of the arms-related language in the U.S. Constitution, including the Second Amendment?" Other evidence outside the scope of that question may inform our historical understanding about the tradition of arms in America, but that other evidence is no part of the record with regard to the meaning of the Constitution.
As I am sure you can understand, other evidence which post-dates ratification cannot possibly have been relevant. So you ought not to be shocked that other standards of relevance also apply.
Stephen Lathrop
September.11.2022 at 5:19 pm
Flag Comment Mute User
The relevant question is this: what was understood to be the scope of the right to keep and bear arms when the second amendment was ratified?
No. That is absolutely not the relevant question. I will grant you that it is the question Scalia posited tacitly by his style of argument. And you bought it.
But the relevant question is, "What evidence exists to show the purpose of the arms-related language in the U.S. Constitution, including the Second Amendment?"
The answer to both questions is that 2a protected the right of the people to form militias for the common defence and the individual right.
From Stevens' Heller dissent:
"Guns are used to hunt, for self-defense, to commit
crimes, for sporting activities, and to perform military
duties. The Second Amendment plainly does not protect
the right to use a gun to rob a bank; it is equally clear that
it does encompass the right to use weapons for certain
military purposes. Whether it also protects the right to
possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by
this case. "
Stephen,
Both the majority and the dissents agreed that the question before the court was: Whether it also protects the right to
possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by
this case. "
Why cannot you buy into the actual question before the Heller court?
What a strange post. Stephen was replying directly to you and your proposed "relevant question," which he quoted, which wasn't this, and which had nothing to do with Heller.
What is truly strange is that you and Stephen cannot accept that the scope of the right to keep and bear arms as originally understood was the question before the court in Heller, even though both the majority and the dissent tell us so in plain language and both used originalist reasoning to push their competing claims.
The dissent argued that the supposed purpose of the second amendment limited the scope of the right that was guaranteed, while the majority showed that even accepting a narrow purpose for enacting the amendment would not limit the scope of the right guaranteed.
Well... you've changed the subject quite a bit but... that was quite literally NOT the question in Heller. The case was about requirements to keep guns locked and unloaded at home, which got boiled down to the question of whether or not the second amendment protects a right to armed self-defense.
Scalia approached it from the angle of whether it originally protected a right to armed self-defense, so Stevens rebutted that argument.
Personally, I have no problem with that approach. I can't speak for Stephen, but I would be surprised if he felt like it wasn't an important part of the inquiry at least.
My problem -- and I think Stephen's -- is that Scalia's method of inquiry was screwy, resulting in a severely botched analysis.
Exactly. Our legal traditions didn't really represent the will of the nation until the other half of the population was allowed to participate which was around 1922
"the glaring flaw in any analysis of the United States' historical tradition of firearm regulation in relation to Ohio's gun laws is that no such analysis could account for what the United States' historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations. "
By the same argument, today's divisive, single-party government is also illegitimate
So the Constitution and all state constitutions and all laws passed before 1920 because they really didn't represent the "will of the nation".
...are invalid?
Liberals: "history is irrelevant to judicial decision-making! Now, back to state decisis..."
An edit button would be nice.
Yes it would. Also, so type of filter to sort comments and the addition of a "replying to" line to avoid confusion in long strings of replies.
Perhaps Koch can't afford the cost of Disqus (though it's possible that Disqus's TOS couldn't be followed by this site).
Don't worry, liberals aren't that into stare decisis. We just wanted to make sure everybody knows which side was the one to jettison it, so that we can point to the Roberts court as setting the precedent as we overturn things willy nilly. Now we know the magic words: "Egregiously Wrong." Easy peasy.
We're progressives. Stare decisis doesn't suit us.
Yes, progressives are into Year Zero instead.
The problem for you is that every mature, honest legal thinker recognized Roe v. Wade as deeply flawed on both factual and legal grounds from the very start. It was just considered too useful to leftist causes to correct.
(It's not clear why leftists put so much store in the cause of killing millions of Black children -- they claim that those lives matter, although revealed preference indicates they don't believe that.)
compare and contrast which controlling legal philosophy has jettisoned stare decisis more frequently
A) the philosophy that believes in originalists/textualist approach or
B) the philosophy that believes in a living / evolving constitution that doesnt require amendments to change the meaning of the words
EV: My thought: Some of these points may be apt to some extent, but American judges have long considered history in interpreting the Constitution, in interpreting statutes, in understanding and developing common-law principles, and more.
With the exception of strictly legal history—the texts of statutes, cases, precedents, common law principles, etc.—I doubt many academic historians would agree that most of the legal profession practices history at all. Which of course means judges' increasingly frequent professions to do so demonstrate they do not understand the subject, and remain unaware that they do not understand.
Professor Volokh, if you really believe judges have been alert to history, and know how to consider it to decide legal questions, I urge you to explore historiography, the study of which rules, principles, and activities can best advance the accuracy of inferences about the past. One author you could start with, who considered those problems with philosophical thoroughness, is Michael Oakeshott. Two of his works would make a good beginning. First, On History, a work comprised of three sub-sections: "Present, Future, and Past"; "Historical Events"; and "Historical Change." There in 128 pages you have an opportunity to learn why historical problems create novel and notably difficult intellectual challenges. You find out why they are not at all the simple process would-be legal analysts so often presume them to be. In that same volume there is also another essay, titled, "The Rule of Law," which you could undoubtedly critique better than I can. I would be interested in anything you had to say about it.
The second work by Oakeshott I recommend is ostensibly about politics and ideology, but I suggest it has useful lessons for historians as well, especially as a caution about unexamined assumptions. It is called, Rationalism in Politics. It is an in-depth critique of the tendency to elevate theory over practical experience. Both volumes are available inexpensively in paperback from Amazon.
The plain language of the 2nd amendment leads to two alternative readings. One of them leads to thousands of unnecessary gun deaths in the US. Only in the blinkered, bloodthirsty view of the professors on this blog and their acolytes in the comment section, would someone choose the interpretation of this ambiguous language that results in those thousands of unnecessary deaths instead of the one that would prevent them.
True, true.
This is why civilized nations like Mexico have so few gun deaths. Why, if German Jews had been allowed to own guns, can you imagine the number of unnecessary deaths that might have occurred? How wonderful we could avoid that.
And those millions of defensive gun uses by Americans don't hold a candle to the thousands of deaths caused by those law-abiding criminals that would have given up their guns if only the Second Amendment didn't exist.
Most places it is a crime publicly to revise ANY detail of the "history" of the Holocaust. Fines, jail.
The difference of course is that everyone can have their own religion, and no one else needs to understand the how's wherefores and whys, but everyone should be under the same law, and it's dictates and principles should be as transparent as possible.
Contemporary Christians have the same failings as those described by Paul.
But my guess is that most misunderstandings of the Bible come from a misunderstanding of the context of what the scriptures were addressing.
It’s not from a failure to account for how they would think about current circumstances.
Insisting it's just an analogy is one way to respond to someone explaining why your analogy doesn't work.
Indeed, you don't. As usual, every accusation you make is a confession.
No, it can not be reasonably read to say that, any more than "due process of law" can be reasonably read to permit you to Groom kindergartners.
The right of the people to keep and bear arms.
Outside of 2A, in what US constitutional context has "the people" been read as implying a collective rather than an individual right?
The correct answer is none. Which would imply that an individual right to bear arms was the intent of the second amendment.
“ states’ rights to a well regulated militia”
States have a right to a well functioning militia.
Therefore federal gun restrictions are unconstitutional.
But it is the states that have standing to challenge the NFA. Not individuals.
I do take something of a textualiat viewpoint. The 2nd Amendment guarantees two things against federal governmwnt encroachment: a right of a state to maintain a well-regulated militia, and a right of the people to keep and bear arms.
It was inaccurate and anti-textual for the court’s liberals to maintain that the 2nd Amendment contains only a states right to a militia and the right to keep and bear arms is just surplus verbiage added on.
But it is equally inaccurage and anti-textual for the court’s conservatives to maintain that the 2nd Amendment individual right to keep and maintain arms is wholly severed from and independent of the state’s right to maintain a well-regulated militia.
While the 14th Amendment gives the people a right to keep and bear arms enforcible against the states as well as the federal government, it did not make this right any more expansive than it was before. It is still subject to reaonable state militia regulations. The state cannot eviscerate the individual right. But it can standardize and limit the weapons permitted, require registration, require safety training, regulate storage, require people who keep and bear arms to report to national-guard type training or limited duties periodically as a condition of being allowed to have weapons, and do a fair number of other things that represent reasonable militia regulations.