Originalism after Dobbs, Bruen, and Kennedy

The Proper Role of History and Tradition

In three cases last term, the constitutional concepts of history and tradition played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women's Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

Some who dislike these outcomes have characterized the cases as originalist. Others have suggested that the reasoning in these cases constitute a new "History and Tradition" alternative to original public meaning originalism, or even an alternative to originalism itself.

In a new paper now available on SSRN, UVA Professor Lawrence Solum and I take a deep dive into the methodology of these three cases. Each case raises important questions about the Court's approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court's embrace of originalism?

In this paper, we do not express our agreement or disagreement with the outcomes in these cases. Instead, we take this opportunity to elucidate the constitutional concepts of history and tradition and identify four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose; (2) as modalities of constitutional argument within a constitutional pluralism framework; (3) as a novel constitutional theory, which we call "historical traditionalism"; and (4) as implementing doctrines. With these concepts in mind, we then investigate the roles of history and tradition in Dobbs, Bruen, and Kennedy. Lastly, we articulate a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

The paper is Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.

Comments

[bernard11]

“History and tradition” seem like little more than excuses for reactionary decisions.

It is not at all clear to me that these ideas should play a significant role in judicial decision-making. Nor do I think they really did in the cases Barnett mentions. Does anyone think that it was careful reading of history and tradition that led the majority to its decisions in Dobbs and Bruen? Wasn’t it rather the case that pre-determined conclusions led them to read history a certain way, to search for support for those conclusions?

And of course "history and tradition” are absolutely made to order for cherry-picking. In Kennedy the majority didn’t even bother to describe the facts of the case correctly. Why should we assume other historical arguments are well-founded?

[Randal]

Yep. Whether it’s a doctrine or a modality, History & Tradition is totally impractical except as an outcome-oriented fudge factor.

I feel like that’s become so obvious to legal community (lower judges, academics, Randy) that the movement originalists are worried its inevitable repudiation will take originalism down with it. Hence these efforts to distance Originalism from the (newly-coined) Historical Traditionalism.

[Kazinski]

History and tradition are nothing new in court decisions. Here is a single excerpt from US v Miller (1939) recounting the history and tradition of the militia that isn’t markedly different (just briefer) than cites in Heller and Bruen:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. “Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out “that king Alfred first settled a national militia in this kingdom,” and traces the subsequent development and use of such forces.

Adam Smith’s Wealth of Nations, Book V, Ch. 1, contains an extended account of the Militia. It is there said: “Men of republican principles have been jealous of a standing army as dangerous to liberty.”

“In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character, and in this distinction seems to consist the essential difference between those two different species of military force.”

“The American Colonies In The 17th Century,” Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England —

“In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.” “The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.”

“A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts].”

[Mike Hansberry]

Moreover, the Miller court looked to the how the various states defined the right to bear arms.

"Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below. "

Yet somehow Stevens concluded that the scope of the right to keep and bear arms of the second amendment is limited to service in the state militia, and he insisted that such a qualifier be read into its text.

[Stephen Lathrop]

Yet somehow Stevens concluded that the scope of the right to keep and bear arms of the second amendment is limited to service in the state militia, and he insisted that such a qualifier be read into its text.

Hansberry, not commenting on what Stevens said or didn't say. But there is a powerful historical argument for that conclusion you attribute to Stevens.

It is undisputed that at the time the 2A was drafted and ratified, various state constitutions already had clauses to guarantee rights to use guns for various purposes, including militia purposes in some cases. Also undisputed is that those various state constitutional provisions were not alike.

That means it would not have been possible to create in the national constitution one standard to apply alike to every state. Some or all of the states would have to agree to give up existing constitutional provisions covering gun rights. And all of them would have to give up permanently the power to tailor gun rights to match their own state preferences. Any future adjustments would require a federal constitutional amendment.

Finally, everyone understands the abiding sectional tensions which made any issue of that sort threatening.

What actually happened, with no mention of any 2A purpose but a militia purpose, strongly suggests it was a common denominator solution, with anything further left unconsidered to avoid a deal breaker for at least some states. The result was that the only gun-rights issue which had been broached explicitly—protection for states' militia powers—got addressed to the states' satisfaction. And everything else was left unchanged.

That looks very much like customary founding-era federalism in action. And anything else that could have happened would have looked decidedly otherwise, inviting objections that some states wanted to dominate others on a fraught question of state powers. Given a risk like that, why would any convention delegate dig in to insist on a controversial attack on a status quo which could be left alone to every state's satisfaction?

[Randal]

Miller’s brief look at the nature of militias at the time of drafting in order to understand what was meant by the term “militia” is completely different from Heller’s and especially Bruen’s attempt to justify the existence of substantive rights based on whatever the states did or didn’t allow back in the day. In Randy’s terms, Miller was engaging in thing #1, where Heller and Bruen were doing #3 and/or #4. Notice that Miller doesn’t mention “tradition,” since that’s not really important for just defining words.

I have no problem with using history to define words and phrases. To the extent the definition of a word has changed, we should be using the definition from the time, not the modern one.

But Heller and Bruen go further. Where Miller uses the history of militias to define what the Constitution meant by “militia” and give it effect, Scalia (mis)uses History & Tradition in Heller to decide that the text of the Constitution is irrelevant and the second amendment isn’t actually about militias at all. See the difference?

[Kazinski]

Don’t be intentionally obtuse, references to King Alfred and the ratio pikes and pikemen to musketeers in 1649 in Massachusetts were references to tradition, not the state of the militia at the founding.

And Miller also makes it clear the right is universal: ‘In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms…, and not connected to actual service in the militia.

Now of course Miller was a deeply flawed ruling, as shown by:
"No appearance for appellees."

And then the curious triple negative in the holding that says no evidence or brief was introduced by counsel who didn't appear leaving the governments argument unopposed:

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

[Randal]

I agree that the right is an individual one. Is that what you mean by universal?

Certainly Miller is a confused mess... but it's very difficult not to read it as assuming a necessary connection between the right and militias.

when called for service these men were expected to appear bearing arms supplied by themselves

the militia system was based on the principle of the assize of arms

some reasonable relationship to the preservation or efficiency of a well regulated militia

this weapon is any part of the ordinary military equipment

its use could contribute to the common defense

And that's just from the paragraphs quoted above. There's no suggestion that anyone even considered the right might extend beyond the militia context to personal self-defense or hunting.

[Kazinski]

Well once again, Miller was a very narrow holding that wasn't briefed or argued by opposing counsel, so I think extrapolating it beyond upholding the NFA would be unwarranted.

The sole point I am making is the Miller Court felt obliged to cite tradition and history to justify their ruling, and performed an inquiry not unlike Heller and Bruen to justify their ruling.*

* The mind boggles at the effort and persistence needed to perform the research needed to complete their inquiry in an era that predates the internet and Wikipedia by 2 generations.

[Randal]

Sure sure sure but no. The Miller inquiry was very unlike Bruen, for the reasons Randy articulates in the paper. Bruen goes beyond trying to figure out what the Constitution means and makes the really shocking claim that the effect of the Constitution doesn't flow from its text. Bruen treats the Constitution not as a legal document but as a snapshot in time, the purpose of which being the perpetuation of 18th-century politics, policies, and mindsets. That's just dumb and will be repudiated, I suspect sooner rather than later.

[Stephen Lathrop]

That would better be styled, ". . . the perpetuation of unsupportably supposed 18th-century politics, policies, and mindsets."

[Brett Bellmore]

"Certainly Miller is a confused mess… but it’s very difficult not to read it as assuming a necessary connection between the right and militias."

Sure, and the connection they read into it was that the goal of militia service dictated what counted as arms. And, did NOT dictate who got the right. That it was a general right of the People, but a right to weapons suitable for use in a militia.

But the key thing to remember about the Miller case is that the government prevailing was predetermined. It was a deliberate setup case, engineered to provide the government a chance to argue before the Court without any opposing counsel, and it came not long after "the switch in time that saved Nine". The government was going to win, period, end of story.

The court gave the government their mandatory win on the narrowest imaginable grounds: By refusing to take judicial notice of a fact that several of the Justices would have been personally aware of: That sawn off shotguns had actually seen military service in WWI.

Then, of course, Scalia pretended to be upholding Miller while standing it on its head, to justify banning civilian ownership of military weapons, the exact weapons Miller had held were the only ones the 2nd amendment DID protect ownership of.

I've often said that Stevens' dissent in Heller only pretended to be originalism. But Scalia wasn't much better, he was just willing to leave a neutered 2nd amendment in place, instead of slaughtering it completely the way Stevens wanted to.

[Kazinski]

The NFA did “ban” automatic weapons, even though that was not the specific question the Miller Court ruled on when they upheld the NFA. Nor was it a question the Heller court ruled on.

I can’t think of a better way to increase the controversy and make Heller a bigger target than to not only reverse a longstanding precedent, but also rule on questions that were not before the court.

[Brett Bellmore]

The NFA didn't ban automatic weapons, though, which I expect is why you put "ban" in quotes. It subjected them to an extremely high tax. (High at the time, it's been inflated into insignificance.) In fact, it was explicitly upheld by the Court on the basis that as long as a law claimed to be a tax measure, and was capable of producing any revenue at all, the Court would not entertain the possibility that it was an unconstitutional penalty. (It took Roberts to apply that reasoning even where Congress declared the enactment to be a penalty...)

It wasn't until 1986 that a last minute amendment to the Firearms Owner Protection Act closed the door for paying that tax on new machine guns, which by the Court's reasoning in upholding the NFA, rendered it unconstitutional. And in United States vs Rock Island Armory, it was so found. The reasoning clearly lays out that, at the time, they actually had understood that Congress had no power to "ban". Not drugs, not guns, not diddly squat.

Rock Island Armory doesn't do us a lot of good, though, because of the 1968 gun control act, which regrounded machine gun regulation in the by then vastly exaggerated commerce clause. So they can't jail you for violating the NFA, techinically, "only" for violating the 1968 gun control act.

And I believe Rock Island armory was limited to one circuit, because the feds didn't appeal the defeat, just started charging under the gun control act.

[Stephen Lathrop]

And Miller also makes it clear the right is universal: ‘In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms…, and not connected to actual service in the militia

Yeah. Universal, except for the 70%–90% of all adult males then classed as, “servants.” A class which in mid-17th century England (for instance) included everyone who worked for wages, indoors or outdoors, including all farm laborers. They were all excluded.

That mistaken analysis illustrates how historical blunders become consequential if present-minded context becomes by default the resource used to analyze a text which is a historical survival. Such texts arrive in the present absent their contexts of creation, which have been long-since forgotten. Sometimes, academic historians can re-create by inferences those long-forgotten contexts.

The example above is useful to discuss an imposing historical challenge. It has to do with sometimes dramatic differences between denotative meanings and contextual meanings.

The term, “all adult male inhabitants,” as used denotatively in 17th century England, is not a tricky one even today. It does not require the modern reader to keep up with subtle shifts of meaning, the way other terms from that period sometimes do, such as the fact that, “corn,” used then could mean any kind of grain, or that, “cattle,” could refer to any kind of livestock, and was sometimes used to include even chickens.

You could look up individually in a contemporary dictionary the words, “all,” and, “adult,” and “male,” and, “inhabitants,” and conclude those words were read then pretty much the way they are read now. In short, denotatively, you can read Kazinski’s quote from Miller and conclude we’re good to go. We understand what the words said. It’s English, and we get English.

But in fact we do not understand it. Miller had it exactly backward, and that misled Kazinski. What they overlooked is the context of creation for that text, which reverses its denotative meaning. “All,” in that context, does not in fact include everyone, it excludes most.

What a historian of 17th century Britain could tell you is that it was a class bound society, which privileged some classes, but disfranchised others. In the instance of Kazinski’s quote, that class context is an indispensable tacit component of the contextual meaning. A literate person of that time would have effortlessly understood, “all,” used in the context of arms to apply only to persons among the British classes privileged to arms—from which the majority of Britons were excluded. Those privileged classes included most but not all of the nobility, English yeomen, and a loosely defined and somewhat changeable designation which went by the term, “English Freemen.” That one often encompassed some of the others, but also included some more besides. Considering them all together, they did not likely comprise even a majority almost anywhere.

The notion of class in Britain was complicated, changeable, and interpreted variously from place to place. But what it typically did not do was put arms in the hands of the servant class. Indeed, for a long time, in many places, it was worth a flogging for a farm laborer to wander without authorization outside his assigned place in a particular village. If he happened to do so carrying arms for his self-defense, it could cost him his life at the hands of the law. Or in a slightly later era, put him on a ship to Australia.

Almost no one among the modern legal community would guess any of that on the basis of the denotative meanings of the words in the text Kazinski quoted from Miller. Context of creation critically inflects every historical text. When such a text survives into the present, that context of creation does not come with it, and is typically forgotten. So a surviving historical text gets interpreted by default in a different modern context familiar to folks alive today. Historical chaos ensues. Kazinski has pointed us to a particularly vivid example of that.

[Mike Hansberry]

"Scalia (mis)uses History & Tradition in Heller to decide that the text of the Constitution is irrelevant and the second amendment isn’t actually about militias at all. See the difference?"

Scalia does not say the second amendment is not about militias at all. He does say that the right to keep and bear arms is not restricted to service in the militia. Can you see the difference?

[JasonT20]

Scalia does not say the second amendment is not about militias at all. He does say that the right to keep and bear arms is not restricted to service in the militia. Can you see the difference?

I get really confused by the arguments Scalia and others make. The idea seems to be to uncover the original meaning of the 2nd Amendment to decide what kinds of weapons are included in “the right of the people to keep and bear arms”, what it means to “keep and bear” those weapons, whether it is an individual right or not, and to use history and tradition, especially from the Founding era, to do that. Oh, but that phrase actually in the text of the 2nd Amendment, “A well regulated Militia, being necessary to the security of a free State”? We can’t use that.

[Brett Bellmore]

He didn't want to use it, because it leads directly to Miller: The "arms" in question are military arms.

And that was a bridge too far for Scalia.

[Mike Hansberry]

See the Heller court's cite from Nunn v GA, that may help you understand the relationship between the milita clause and the main clause.

“The right of the whole people, old and young, men,
women and boys, and not militia only, to keep and
bear arms of every description, and not such merely as
are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our
opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes
this right, originally belonging to our forefathers,
trampled under foot by Charles I. and his two wicked
sons and successors, re-established by the revolution
of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our
own Magna Charta!”

[JasonT20]

I don't think you caught what was I was criticizing here. If the Heller majority needed to refer to the purpose of the 2nd Amendment in order to decide the case before them, then you'd think that they would have started with the words in the text of the 2nd Amendment. Instead, Scalia seems to discount the militia clause as not having any force or use, while looking elsewhere to understand its purpose.

See the Heller court’s cite from Nunn v GA, that may help you understand the relationship between the milita clause and the main clause.

So, the point is to allow all young people to learn to use guns so that they don't have to start training from scratch to be part of the militia?

I don't think that matches up with what Scalia wrote very well at all.

What you also don't seem to realize is that these cases, while decided within living memory of the ratification of the Bill of Rights, were not decided by people that were part of that process. These cases are 30-50 years afterwards. Even by then, they were drawing their own conclusions about what was meant or intended by the 2nd Amendment, not following what could be known with certainty about that. Even that much smaller amount of time than to the present would have left them with incomplete knowledge of what all of the people that drafted and voted to ratify the 2nd Amendment understood it to mean.

Looking back at surviving historical documents and practices can give us useful information. The problem is relying only on incomplete and uncertain history to decide how to interpret the words now.

[Mike Hansberry]

Nah, I caught what you are up to. You keep flipping back and forth between what you say is the purpose of the amendment and what you claim is the purpose of the right protected. The Heller majority as well as the justices in Nunn v TN understood the difference and explained how they relate to each other.

"Looking back at surviving historical documents and practices can give us useful information. The problem is relying only on incomplete and uncertain history to decide how to interpret the words now."

That is why it makes sense to look at all of the earliest cases as well as commentors to get the full picture. What is missing from that picture is Stevens' insistence that the right only applies when in service of the militia.

[JasonT20]

That is why it makes sense to look at all of the earliest cases as well as commentors to get the full picture.

No. As I already pointed out, the earliest cases were already more than a generation removed from those that drafted and ratified the 2nd Amendment. That and other surviving documents are an incomplete and uncertain record of what the "full picture" is.

Nah, I caught what you are up to. You keep flipping back and forth between what you say is the purpose of the amendment and what you claim is the purpose of the right protected.

I thought I was pretty clear that what I am "up to" is to question the soundness of trying to use history as the only way to get at the purpose and meaning of the text of the Constitution. That is especially the case for lawyers and judges not trained in the study of history. So many people think that studying history just means looking through old documents and finding what they think is relevant and then using that to bolster an argument they want to make.

[Mike Hansberry]

So none of the earliest cases support your claim, but that does not bother you in the least. Yeah, that's how is supposed to be done.

[Randal]

Scalia does not say the second amendment is not about militias at all.

Oh, but he does! He specifically says that in this day and age, allowing people to own weapons that would be useful in a militia would be too dangerous to contemplate. Scalia takes militias out of the Second Amendment entirely and replaces them with a self-defense justification. It's total bullshit.

[Kazinski]

One acknowledges, even Stevens dissent, that the second amendment protected an existing right. Scalia's dive into history and tradition fleshed out just what that existing right encompassed.

The "well regulated militia" clause was Congress' justification for federal protection of that existing right.

[Randal]

Well then surely the right includes acts that support that justification...?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Laws have to have some fixed context lest they be interpreted differently by everybody, and thus be a bowl of gruel. Since the context as of creation is the only context the authors had, that is the only valid context.

Living constitutionalists only use for laws is as an emperor's invisible fig leaf covering up rule by men.

[bernard11]

Be that as it may, history and tradition are anything but a fixed context. That approach means you look over the past N years, for an arbitrary N that appeals to you, for situations where the rules you want to create were in force, and ignore other cases.

[Michael P]

Aren't you smart enough to recognize how you've turned that into a straw man? The Supreme Court didn't propose that N should be arbitrary or variable.

[Sarcastr0]

The Court hasn’t really specified an N. Which is the same thing as declaring it arbitrary for judicial purposes.

Moreover. That is how the Court has deployed the doctrine. Lower courts as well.

[Kazinski]

Defining N in a legal context is never easy:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=11412

[Randal]

Living constitutionalism is a strawman. It's neither the only alternative nor the proposed alternative.

[Stephen Lathrop]

Since the context as of creation is the only context the authors had, that is the only valid context.

Which utterly begs two questions: what context applied at the time of the founding, and what valid methods, if any, can people now, all of them born ignorant of that context, use to infer that forgotten original context. Originalism practiced in relation to every amendment prior to the early-20th century encounters those same problems.

[The Margrave of Azilia]

“Originalism practiced in relation to every amendment prior to the early-20th century encounters those same problems.”

Maybe so. But…

What if we confine ourselves to those phrases which seem to *require* a context in order to be intelligible?

What are “cases at common law”?

What is the writ of habeas corpus?

What rights are retained by the people but not enumerated speceifically? Or like Robert Bork, would you say that’s just an inkblot which should be ignored? Or at the other extreme (which comes to the same thing) a license to invent whatever rights we like and ignore those we don’t?

[Stephen Lathrop]

Margrave, look at each of the questions you asked. Note repeated use of the present tense. Historical context requires the past tense.

A problem of which you seem unmindful hinges on that distinction; it is signaled by your questionable choice of tense. Between then and now, there lies a historically ambiguous interval. Historically ambiguous in the sense that it was history to us, but the unknowable future to those who lived prior to it. Thus, from the standpoint of any era a historian seeks to reference, thoughts, events, and occurrences during that equivocal interval created context we rely on daily, but lay in the unknowable future, and thus had zero influence on the context of anything that happened then, during that past era of special interest to us now.

People alive today are all born utterly ignorant of prior context. Instead, they grow up pickled in ideas and inferences of which inhabitants of previous eras were equally ignorant. Our remembered past was their undiscoverable future. Our context is not theirs; their context is not ours.

Those questions you asked in the present tense cannot get valid answers unless you practice some method to discover what context you may justifiably use to infer what amounts to a passage of forgotten history. You must begin with acute awareness that such a method cannot rely on the context you have available to you now. Any presumption that you can read the text of antique laws, or legal decisions, and derive reliable inferences will prove mistaken. Bygone context of creation does not arrive in the present to accompany texts which happened to survive. You see the survival in present context, not in its creation context, which did not come with it.

To the extent your objects of study—whether surviving manifestations of people, texts, objects, or ideas—depended on the contexts of their creation for meaning, any present-minded analysis will be in error. And a great many occurrences cannot be understood at all without contextual insight. Others may simply be misinterpreted. Whether such errors are slight or critically important you will have no means to discover. What do you propose to do?

[The Margrave of Azilia]

I propose to put your comments through Google to see if they can translate it.

[Stephen Lathrop]

I keep failing at this.

Let me try to boil it down. Maybe if I weed out complexity, and compose only an introduction:

1. Meaning of any text depends in part, often in large part, on the context of its creation.

2. A text may survive unaltered during long time intervals.

3. Textual context is about patterns of meaning and influence peculiar to places, circumstances, and particular times. Such patterns are too various and too complicated either to endure, or to be repeated. For that reason, original context of a text's creation does not and cannot attach to the text, which never changes to match changes in contextual patterns.

4. A historical text which survives thus arrives in the present without its context of creation.

5. A text which survives into the present gets interpreted instead by default in present context, attaching present contextual meanings to replace not only its long-forgotten context of creation, but also any other contexts with which it became implicated during its descent through time.

6. Present context is no more fixed than is the long-forgotten context of creation, and is destined to be forgotten in turn. Each is likewise an attribute of places, circumstances, and particular times. Thus, the interpreted meaning of any text which survives through time changes continuously as times advance, and as places and circumstances change.

7. Those general statements lay the foundation for two questions, about history and tradition. First, taking 1–6 as rules inherent in a historical dilemma, and thus unavoidable, can there be any valid method to recover by inference an original context of creation for a particular text known to have originated at a particular time, and in a particular place?

8. Second, what does a would-be originalist propose to do?

Absent a persuasive answer to question 8, it will not be possible to regard any flavor of originalism as intellectually useful activity.

The crux, of course, depends on an answer to question 7. Here is the short answer to question 7: Yes. Sometimes. Sometimes, there can be a valid method to recover by inference an original context of creation for a particular text known to have originated at a particular time, and in a particular place.

The long (adequate) answer to question 7 is the one which has defeated several attempts by me to explain. I am not equal to that task. You can find it set forward in about 100 pages by the late historian, historiographer, and philosopher Michael Oakeshott. If you want to learn that answer, order from Amazon a copy of his small book, On History and Other Essays. Be prepared to read it several times. Making it longer makes explanation possible; it does not make it an intuitively easy explanation for a historical layman to grasp. Historical analysis turns out not to be so simple an activity as most people suppose.

[The Margrave of Azilia]

Again, I wasn't assuming originalism would answer every question. But when the Constituion uses terms of art, or refers to contemporary practice, then in those specific cases we have to do more than read Michael Oakshott several times over. We have to tackle what those terms meant at the time.

[JasonT20]

I understand what he was saying quite well. If you want to really want to understand what people at the time thought was meant by provisions in the Constitution, you would have to forget all of the history, scientific discoveries, and everything else you know that was not known then, as well as learn things about how they lived life at that time that you don't know.

Even when things written at the time about such matters survive to the present, that is going to be just some of the things that were written about what some of the people thought. And some of what people thought was never written down, only discussed in direct conversations between people that have been dead hundreds of years.

Originalism can never give a complete, definitive understanding of the original meaning of the Constitution. People will always study and debate what various Founders thought about the document they worked to construct and ratify. (Not to mention that some prominent people at the time worked against ratifying it, or, they worked to ratify it even though they disagreed with parts of it and just thought it was better than the status quo.) Some legal scholars will do a better job at the historical analysis than others, with some ending up making better arguments about what each part of the Constitution meant at the time. In that respect, originalism is no different than any other method of analyzing and interpreting the Constitution.

The bottom line for me is this: If we really want judges and Justices that will interpret the Constitution in a politically neutral and not a results-oriented way, then we need to be sure that the judges that get appointed want to do that. I think that trying to come up with a neutrally applicable interpretative method is a fools errand in comparison to simply not appointing judges with such obvious political biases and agendas.

[The Margrave of Azilia]

"Originalism can never give a complete, definitive understanding of the original meaning of the Constitution."

I didn't say it did. I assumed the opposite, but gave some instances where looking at the contemporary meaning would be necessary.

[Stephen Lathrop]

Margrave, do you suppose something can be both necessary and impossible at the same time? If so, what happens to anything that requires that thing done, when it proves impossible to do?

The answer to that second question presents a problem would-be originalists seem loathe to confront. Perhaps you would prefer to dodge it yourself.

A related problem, and very much in the same vein, is what happens when the thing which must be done can be done, but only with great difficulty, by means which the originalist himself has not mastered? That, by the way, will be the typical situation, the situation which prevails in the small minority of cases where originalist insight to answer some question about a required original meaning is actually possible.

Exceptions, in which a needed meaning in original context is somehow accessible to someone incapable to employ the typically necessary means—such as a judge or lawyer who shuns Oakeshott, or any similar expert on that kind of investigation—will almost never happen. In such cases nothing can be expected except misinterpretation of the sought-for meaning.

Do you suppose a useful legal originalism can be constructed on such a foundation of spurious claims? I ask the question seriously, because I expect to discover from Professor Barnett that he does suppose that.

[ObviouslyNotSpam]

If the meaning of a provision is truly lost, the provision in question is simply inoperable, a nullity. What else would you have it be?

[The Margrave of Azilia]

“Do you suppose a useful legal originalism can be constructed on such a foundation of spurious claims?”

I’m not sure whom you’re responding to, since I didn’t call for “a useful legal originalism.”

I wasn’t talking about looking up the original meaning of every passage, but of those passages which use terms of art or which reference prior practice. Cases at common law, jury, habeas corpus, and yes, rights *retained* by the people.

If a prisoner, held without trial, applies for habeas corpus, does the judge say, “well, I have no way of knowing what habeas corpus is, so I’ll just assume it means dangerous people can be locked up without trial”?

How many times should the judge have to read Michael Oakshott before deciding what the prisoner's rights are?

[The Margrave of Azilia]

Nor would this be a matter of rummaging through the constitutional convention debates, but of looking up the jurists and court decisions recognized at the time to see what habeas corpus meant.

[Stephen Lathrop]

ONS, that's where you need Oakeshott. For all the reasons I have proved I can't explain, it remains possible, sometimes, under stringent conditions, to reconstruct by inference from evidence which has survived, a forgotten passage of history that did not survive. That is an approximate quote from Oakeshott, by the way.

It will not hearten would-be originalists to discover that one of the conditions insisted upon is that there be no intention to make history serve any present purpose. More encouragingly, I take that to mean that if history inferred from surviving evidence, by the sole means of making those bits of evidence critique each other, discloses an original meaning without intending any specific purpose for it, then such a rigorously derived meaning could be fit for any purpose, including an originalist purpose. I suppose if you followed that, you might conclude that historical originalism conducted that way is too cumbersome a tool to be very useful, and I would agree.

The point I commend to you, as necessary to inform an understanding of the originalism debate, is that no one can understand that debate who does not understand the twists, turns, and apparent paradoxes which historical methods deliver when they are rigorously thought through. That seems to imply that the leading proponents of originalism are incapable to understand it, but others need not keep themselves likewise in the dark.

[The Margrave of Azilia]

Perhaps I should say "the Supreme Court on appeal" rather than the lower judge who has to follow whatever the Supreme Court says.

[Stephen Lathrop]

Nor would this be a matter of rummaging through the constitutional convention debates, but of looking up the jurists and court decisions recognized at the time to see what habeas corpus meant.

Margrave, why would you suppose an ability to understand the meaning of a court decision in which every phrase was inflected by a context about which you have no insight? What insight into the meaning of that text do you suppose your present-minded notions of context can deliver? Absolutely nothing in that decision was written by a person who would not be startled by practically every premise you brought to the task. And you have not yet even suspected that is a problem which could affect an accurate understanding.

It is a big problem that reading texts across time is not at all the same activity as reading texts from present times, and almost nobody suspects the difference exists.

[The Margrave of Azilia]

I’m still not sure what the Supreme Court should do if it’s hearing the case of a prisoner claiming habeas corpus rights under the Constitution. “We don’t know what habeas corpus even is, so back to prison you go!”

And how old does a law or court decision have to be before it loses its meaning? What of Brown v. Board of Education, now over half a century old? The Fifties were certainly a different era!

[The Margrave of Azilia]

Or perhaps a guy writes up his will when he's 30, but doesn't die until he's 80 or 90? I mean, the court will be considering a legal instrument that's half a century old or more! Is it still intelligible?

[Stephen Lathrop]

Is it still intelligible?

Margrave, to answer that question is a responsibility which falls on the would-be originalist. There needs to be both an answer, and a show-your-work demonstration of methodology competent to deliver the answer. Cases will differ. No rules can assure useful results in any particular class of cases. That, of course, must count as another strike against prescribed reliance on originalism, as we see it in Bruen and Dobbs.

[The Margrave of Azilia]

“the would-be originalist”

Who are you arguing against? Go and ask an originalist about the originalist philosphy.

You don’t need to be an originalist to question your the-Constitutional-is-indeterminate claims.

You’re arguing on a general level, while I gave specific examples. Of coure you’re unpersuaded, but I think I’ve done all the Internet requires in order to return your serve, and now it’s your turn.

You won’t even say what the Supreme Court should do with a prisoner held without trial, who invokes the constitutional right of habeas corpus.

Also, you need to articulate how recent a law or court decision has to be in order to be intelligible. A hundred years? Fifty years? Twenty? Ten? Five? One? A day?

You mentioned "every amendment prior to the early-20th century" - what makes amendments from the previous century so intelligible?

[JasonT20]

You don’t need to be an originalist to question your the-Constitutional-is-indeterminate claims.

The Constitution isn't indeterminate in Stephen's argument, to my thinking. I keep going to back to the basics of what I see him saying: Trying to decide what the "original meaning" of a provision of the Constitution was, as a way of deciding a case in the present, is going to be simple only when the language doesn't really need much interpretation anyway.

What counts as commerce under the Commerce Clause? That requires interpretation. What does Necessary and Proper mean? That requires interpretation. What punishments would be cruel and unusual? That requires interpretation.

But what does it mean that members of the House shall be chosen every second year? That doesn't really need any interpretation.

As for a writ of habeas corpus, we don't need to try and figure out what it means by only looking to what the Founders thought it meant. That is because it is a term that has been in continuous use since then. What it means now may or may not be exactly what the Founders understood it to mean, but we don't need to know exactly what the Founders thought it meant in order to determine its meaning now.

The point of originalism is not to discover what something in the Constitution means using history because we wouldn't know what it means otherwise. The point is to take the meaning from the past and use that to override any other possible interpretation of those words.

From my perspective, and I think Stephen would agree, it is unsound to base judicial decisions on something so inherently uncertain as what we can conclude about what people that lived hundreds of years ago thought about anything that is going to be controversial enough to be at the center of a court case. Add in that judges are not trained as historians or in the methods of historical analysis, and it all becomes a recipe for judges to use history selectively to reach a desired conclusion. That is the very problem that originalists say that originalism is trying to avoid.

[The Margrave of Azilia]

I made a specific claim, that *some* constitutional provisions use terms of art or specific references to ratification-era understandings. But now it seems that even these can evolve, grow and change under governmental supervision. No need for the amendment process.

I myself think I've turned away from what is called originalism, but I don't agree with throwing the baby with the bathwater.

[bernard11]

it all becomes a recipe for judges to use history selectively to reach a desired conclusion.

Or, as Breyer put it in his Bruen dissent:

At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd.

[ObviouslyNotSpam]

The context is what is to be discovered and/or understood by the judge during the interpretation process.

Meaning does change over time, which is why failing (purposely or not) to discover the historical context is unlikely to result in an accurate interpretation of the law as understood at the time it was enacted.

Such a process is almost an "invitation" to engage in cherry-picking, as stated above, but the "history-free" alternative has even less of a claim to legitimacy than an historical investigation done badly.

[Stephen Lathrop]

. . . but the “history-free” alternative has even less of a claim to legitimacy than an historical investigation done badly.

With that remark you pretend respect for the formidable methodological problems which beset would-be originalists, but try to preserve reliance on the method as if the problems did not exist. That seems unwise.

Instead, go ahead and make your legitimacy case for a method of legal interpretation which is both presented as magisterially correct—and thus capable to constrain decision-making—and simultaneously found specious, exposing practice of the method itself as lacking internal standards of constraint.

Also, be sure to mention why it is legitimate to be ruled arbitrarily according to ignorant claims attributed by some members of present generations to long-dead forebears, when to do that sacrifices liberty of self-rule according to more forthright claims which other members of present generations might choose instead.

Never fall for any pretense that you get rule of law from any but members of present generations. Every would-be originalist is still alive, and equally subject to fault as anyone else.

[JasonT20]

Never fall for any pretense that you get rule of law from any but members of present generations.

This sums up the problem with originalism quite nicely. I see most of the conservative legal activists and judges that say they subscribe to originalism as trying to fool us into thinking that they simply want to keep the rule of law as understood at the time the Constitution and its amendments were ratified. When in reality, they want to be the ones to define what counts as the rule of law.

You get criticized for being rather wordy around here, Stephen. You should save this for future reference for the people that see more than a couple sentences as TL;DR. 😉

I get accused of writing posts that are too long, as well. I quite enjoy seeing someone post here that puts even more thought into what they write than I do.

[Stephen Lathrop]

I am rather wordy. If I could spare more time to edit, I would be notably less wordy. But actually, I don't need to edit to be less wordy in the aggregate than most of those who say I write too much. They pile onto more threads, and typically make more comments per thread. It adds up. I checked it once.

But thanks for the kind remarks.

[Procyon Mustelid]

So because you dislike "rule by men" you support rule by dead men.

[JasonT20]

Precisely. And dead men can't rule us, because they are dead. Really, what you have is some men now that want to use the cultural authority of revered dead men to rule us.

[Kazinski]

I’ll bite, just what is the case that the 2nd amendment didn’t intend to protect law abiding citizens right to bear arms?

[Dan Schiavetta]

An originalist would look at the sense of crisis induced by Shays Rebellion, the distrust of a possible standing army and the reliance on militias for public safety and as a way to check subversion, and conclude that the 2A is a dead letter, based on conditions addressed by the Framers but not present today, in fact not for many years.

[Randal]

I agree, this will be the ultimate fate of 2A after a couple decades.

Next up: finding Bruen (and Heller) to be Egregiously Wrong since they not only ignore but actively subvert the Militia clause.

[Rev. Arthur L. Kirkland]

Know this, my brethren,
that the switch to eleven
will bring true heaven.

And if times unseen
show this foretelling not keen --
there's always thirteen.

[Mike Hansberry]

As a matter of fact, the Heller majority does not ignore the militia clause.
"The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law...."

How does the Heller majority actively subvert the militia clause?

[Randal]

How does the Heller majority actively subvert the militia clause?

Well, it’s when he goes on to reject the militia clause and substitute a new purpose for the right out of nowhere, of course.

It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause.

And then he goes on to completely detach the Second Amendment from its prefatory clause.

[Brett Bellmore]

A fair complaint. They're not (yet?) ready to genuinely uphold the 2nd amendment, but neither are they prepared, as the minority would have, to entirely moot it.

I think they're gradually moving towards upholding it, though.

[Mike Hansberry]

The Heller majority did not "reject" the militia clause. They made the straightforward observations that the right pre-existed the second amendment, that the militia clause does not qualify the right, and that the prefatory clause provides a rationale for the non-infringement of the right. These are offered in opposition to those who claim that the right to keep and bear arms of the second amendment exists for the specific purpose of protecting the states from federal encroachment (Stevens) or merely to secure a free state.

The court in Heller did water down the "common use" language from US v. Miller to allow the NFA's severe restrictions on ownership of fully automatic firearms to stand. The court in Miller relied on Aymette v TN which found that the citizens have the right to keep those arms which are "usually employed in civilized warfare, and that constitute the ordinary military equipment." But the Heller majority read the "common use" language from Miller as meaning those arms a person would use in everyday life, rather than the full range of the ordinary military equipment as per Aymette. That said, it must be remembered that the Heller case centered on whether Mr Heller had right to keep a hand gun/revolver for personal defense apart from militia service, so the statement relating to the NFA is dicta.

Do you support the interpretation offered by Aymette v TN? Would you rather that every citizen has the right to keep the ordinary military equipment including full auto rifles with restrictions only on how and when they may be carried?

[JasonT20]

The Heller majority did not “reject” the militia clause. They made the straightforward observations that the right pre-existed the second amendment, that the militia clause does not qualify the right, and that the prefatory clause provides a rationale for the non-infringement of the right.

Why insert the militia clause to provide a "rationale" for the right to keep and bear arms and not mention any other rationale that the Heller majority found to exist? Why have a rationale in the text of the amendment at all? How often is there a rationale included in other rights enumerated in the Constitution?

[Mike Hansberry]

Those are all fine questions, but they do not get you to where you want to go. You want to treat the militia clause as though it limits the right protected in the main clause, but neither text nor history supports your point of view.

Regarding your questions, see E.Volokh's The commonplace second amendment. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=54020

[Randal]

Let’s assume you’re correct and the Constitution is simply name-dropping an existing right for some reason, which seems odd really… why wouldn’t it just be covered by the ninth, like self-defense? But whatever.

Now imagine a law which both infringed that ambient right to keep and bear arms, but for the purpose of facilitating the well-regulated militia. For example, imagine a law which set forth a stringent set of qualifications that a militia-appropriate gun must have, possibly even specifying one or two allowed models. No hunting rifles, no shotguns, no tiny handguns, whatever. Maybe they must be fully automatic to qualify. Everything else is illegal, because a) it’s too dangerous to have a well-regulated militia with all these different kinds of guns involved and b) we want people spending their money on weaponry that will actually help. Would that law violate the Second Amendment?

[Mike Hansberry]

You said it yourself, such a law would violate the right to keep and bear arms. A militia law which merely mandated that each person keep a certain caliber rifle would not run afoul of the RKBA as long as it did not ban ownership of other arms.

If your view were correct, the government could require everyone to have a single shot .22 for their militia service and ban ownership of all other arms.

[Randal]

If your view were correct, the government could require everyone to have a single shot .22 for their militia service and ban ownership of all other arms.

Well, the government would have to show that that's not pretextual (is that really the best choice for a militia?) but assuming they could, then yeah. It satisfies the Second Amendment.

I sort of think these arguments about ambient rights to armed self-defense and hunting may be better justified by the Ninth Amendment. That's where the right to unarmed self-defense resides after all. The Second just seems really clear-cut as to its purpose.

[Mike Hansberry]

It is rather clear cut what it protects.

[JasonT20]

This comment system gets rather unwieldy as you go deeper into replies of replies of replies, so I have a bit more to say on this that I'll start a new comment for below.

[Randal]

Would you rather that every citizen has the right to keep the ordinary military equipment including full auto rifles with restrictions only on how and when they may be carried?

Yes. That's what the amendment says, after all. Plus it means Heller and Bruen would've come out the other way.

[Stephen Lathrop]

They made the straightforward observations that the right pre-existed the second amendment, that the militia clause does not qualify the right, and that the prefatory clause provides a rationale for the non-infringement of the right.

Nothing straightforward about that. If the right pre-existed the 2A, then it cannot be a 2A right. It must be something else. Nothing in the historical record announces that prior existence, except in relation to state constitutions, and state laws.

I get that there is a line of argument that it is a natural right, yours by the grace of God, or something like that. That grandiose advocacy does nothing to connect itself to America's Constitution. What you get from it is not constitutional argument; it is a sideshow staged at the prestigious address of heaven itself—plus a mundane assortment of comparatively grubby-looking rights variously protected by states. Those tailor gun rights protections to each state's individual preferences. For all their modest earthly appearance, the latter rights are at least solidly rooted in actual constitutionalism.

On the basis of those arguments—both the natural rights and the state constitutions together—there is zero reason to suppose any federal protection for a right to arms, except for the explicitly written militia right, plus federal forbearance with regard to state powers set forth in the 10A.

Time and again we see pro-gun arguments in this general form: a right to arms for self-defense has always existed, therefore it is protected by the federal constitution.

That kind of advocacy actually began during the founding era. It began as a non-sequitur, and never got better. Repeating it endlessly may attract occasional recruits to that banner. It does nothing to make the reasoning coherent.

So after that is pointed out, time and again come counter-arguments, in this different form: we can prove the U.S. has always had a gun culture, so therefore the gun culture is protected by the 2A.

That is twaddle, but those insisting on it hope it at least satisfies an emergency need to supply something that looks like a counter-argument. When that fails to carry the day, then the argument degenerates further.

A bombardment begins, lobbing citations as ammunition. On inspection those citations are discovered to range from shambling specimens to impressive mountebanks, but always incapable to deliver any show of historical relevance. Yet other citations come by circuitous routes, dressed in travel-worn foreign garb. Still others arrive more mysteriously, conveyed by time travel, venturing backward from times post-dating the founding era. A few suggest equivocal motivation, sent by historical figures who argued to defeat ratification of the constitution. There is also the usual necromancy, from foreigners who died centuries before the American Revolution, or earlier yet, before European settlements began in the New World.

None of that has notable historical relevance to the events by which known persons, acting at particular times, in particular places, established America's revolutionary constitutionalism, and announced it to the world.

Want an actual straightforward observation? Whatever its constitutional basis has been, America's gun policy debate has for decades been based on pure power politics. A minority political faction mobilized political power sufficient to impose its will on a less-committed and thus less politically powerful majority. No more to it than that. What happens henceforward will likewise depend on politics, not on constitutionalism.

[Mike Hansberry]

Stephen wrote: " If the right pre-existed the 2A, then it cannot be a 2A right."

Who knew? So you think the constitution cannot protect pre-existing rights?

[Noscitur a sociis]

That doesn't seem like a responsive answer to Kazinski's question.

[Kazinski]

Shays rebellion might have influenced the Article 1 militia clause, but its a huge stretch to think there was any connection to the 2nd because Article 1 gives congress all the power it needed to control the militia, nor does the 2nd modify that.

I would like to see the 2nd amendment join the 3rd amendment as a historical curiosity.

But of course the 3rd amendment still does ban quartering troops and were the government to decide to start quartering troops upon the people then it would be swiftly enforced. It’s just become a “dead letter” because the government made no attempts to violate it. If Federal, state, and local governments would take Heller and Bruen to heart the 2nd amendment would fade into obscurity like the 3rd.

But alas, the 2nd amendment is like the 1st, 4th, 5th, 6th and 8th, it is constantly under assault by all levels of government

[Dan Schiavetta]

Article I gives Congress the power to arm and call forth the Militia. . . but can Congress be trusted to make the States secure?

The Bill of Rights was added to assuage people who were suspicious of the new federal government. 2A was to ensure that Congress would stay on its toes and not let something like Shays happen again.

Militias, as a guarantee of “the security of a free state”, showed their impotence during the War of 1812, when the British Army easily defeated our ragtag militias. After that, standing armed forces came into existence and the relevance of the 2A passed into history.

[Kazinski]

Everything except the existing right to keep and bear arms.

But there is a simple solution, when the 18th amendment turned out to be an unworkable disaster it was repealed after just 14 years.

Nobody proposed just saying, 'boy that was a stinker, lets just forget we ever enacted it.', Which seems to be your proposal.

[Stephen Lathrop]

Nobody proposed just saying, ‘boy that was a stinker, lets just forget we ever enacted it.’, Which seems to be your proposal.

Kazinski, not my proposal. My proposal is to recognize what is unmistakable in the historical record. Which is that rights to keep and bear arms for self-defense and some other purposes were protected variously by state constitutions and state laws. And a right to militia service, and private arms to support militia service under military discipline, were protected uniformly across all the states by the federal constitution. An accurate reading of American history and tradition would be that that remains the case today.

[Brett Bellmore]

"And a right to militia service, and private arms to support militia service under military discipline, were protected uniformly across all the states by the federal constitution."

What a pity for you that the 2nd amendment wasn't actually written as you propose it should have been.

[Rev. Arthur L. Kirkland]

The true, enduring sorrow here will derive from the consequences the "well regulated Militia" provision imposes (with help from a more modern Supreme Court than exists today) on gun absolutists, gun nuts, and right-wingers soon enough.

[Tom for equal rights]

Brett Bellmore 6 hours ago Flag Comment Mute User “What a pity for you that the 2nd amendment wasn’t actually written as you propose it should have been.”

Agree – as noted by Stevens when he admits his Heller dissent was wrong.
Stevens submits the following revised 2nd Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed.”

[Randal]

I mean, that's exactly how it was written. To read it any other way requires ignoring the text of the Constitution and coming up with a lot of extraneous rationalizations, such as those emanating from penumbras.

[Tom for equal rights]

Randal 10 mins ago
Flag Comment Mute User
I mean, that’s exactly how it was written. To read it any other way requires ignoring the text of the Constitution and coming up with a lot of extraneous rationalizations, such as those emanating from penumbras."

Is that why Stevens proposed an amendment to 2A to say what it didnt say :
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed.”

[Randal]

Who cares what Stevens proposed? His dissent is almost worse than the opinion. Not quite, but it's definitely not where I'm hanging my hat. My hat is hung on the quite clear and unambiguous text of the Constitution. No amendments necessary.

[Tom for equal rights]

Randal 4 seconds ago "Who cares what Stevens proposed? His dissent is almost worse than the opinion. Not quite, but it’s definitely not where I’m hanging my hat. My hat is hung on the quite clear and unambiguous text of the Constitution. No amendments necessary.”

Randal – the problem with your conclusion is that clear an unabiguous text of 2A doesnt state what you claim it states. You simply cant point to any verb, noun, adjective, adverb, phrase or combination of words that limits the right to keep and bear arms to only times when serving in the militia.

Only when Stevens adds his amendment does 2a support what you claim.

[Randal]

I never said it's limited to times when you're serving in a militia. I said its sole purpose is to effectuate militias. The mechanism, obviously, is via an individual right to keep and bear arms. In other words, I like Miller.

But Heller should've come out the other way, because requiring gun owners to keep their guns unloaded and locked up doesn't impact their ability to be used for the common defense. And handguns aren't really militia-appropriate, or at least, that would be an interesting argument to have. It wasn't had.

Bruen should've come out the other way too, because being able to carry your guns around town willy nilly isn't important for militias either.

[David Nieporent]

My proposal is to recognize what is unmistakable in the historical record.

Turns out that things that Lathrop wants to be true are actually easy to figure out! It’s only interpreting the passages he doesn’t like that post this insurmountable challenge!

[Stephen Lathrop]

Easy to figure out? I doubt many searches for historical citations have consumed as much effort as that one. The striking point is that even decades-long efforts to ransack the record have turned nothing up which both comports with customary standards of relevance for historical citations, and supports the case that gun advocates insist history proves on their behalf.

[Toranth]

I will admit, I did not expect anyone to argue that judges should look at the Constitution, and unilaterally decide that modern circumstances were different enough that parts of it just didn't apply anymore.

You do realize you are arguing alongside the people that claimed 9/11 justifies getting rid of that pesky 4th Amendment, or 8th, or whatever else they wanted? Only without the amendment process?

[Dan Schiavetta]

The Third Amendment doesn’t apply any more. We now have a permanent well housed armed forces establishment. Soldiers are no longer quartered in private homes.

The Letters of Marque and Reprisal power doesn’t apply any more. They were forbidden under international law years ago.

Just two further examples, off the top of my head.

[Brett Bellmore]

I’m pretty sure the Third amendment would apply if the government decided to violate it. That the government doesn’t see the need to violate it didn’t make it go away, just denied it application.

“The Letters of Marque and Reprisal power doesn’t apply any more. They were forbidden under international law years ago.”

The Paris Declaration of 1856. Which the US happens not to be a party to.

[Toranth]

A quick check shows the Third Amendment has been upheld as recently as the 1980s (if not more recently) and appeared in a case talked about here just a few years back - the "Do police count" question.
I think that shows the Third IS still relevant, it's just that the government doesn't need to try to violate it much anymore.

As for the Letters of Marque and Reprisal, it's policy not to issue them, but there's nothing preventing them from being issued. In fact, another quick check shows it's been proposed several times recently - for 2001 Al Qaeda, and again for the African pirates.

In addition, both of those involve the government not doing something, as opposed to your attempt to remove the pre-existing rights of the People, without the Amendment process.

[Tom for equal rights]

Capt - are you stating that 2a is no longer valid because conditions today are different than they were in 1700's?

If so, then wouldnt article 5 be the appropriate place to address the change 2A instead of nullifying 2A via a court decree

[Dan Schiavetta]

The first half of the amendment has already been nullified by court decree.

[Tom for equal rights]

The most natural reading of 2A, taking into account the historical writings of the time is that 2A protects two rights:
1) the right to form militia's for the common defense
2) the individual right to keep and bear arms for self defense.

I think Scalia's interpretation that the militia clause was a prefunctuary clause is incorrect - though in his defense, the collective right was not before the court.

Stevens argument that the right was limited to only when serving in the militia has zero historical support.

[Dan Schiavetta]

The only concern expressed in the text is the security of a free state. Not personal self defense.

Militias were the means of keeping public order and repelling enemies. The 2A mentions militias. There’s your historical support.

The militia clause is critical here because this is one of only two places on the Constitution where the purpose of a provision is explained (the Patents Clause is the other).

[Tom for equal rights]

Capt - Your response ignores three critical points
1) The historical writings of the time discuss both the right to common defense and the right for self defense.
2) there is zero historical writing or any other evidence that the right was limited in any way, shape, or form to only times when serving in the militia
3) 2A specifically states the "right of the people to keep and bear arms shall not be infringed." with the phrase "the people" used in a manner consistent with each individual as used through the BoR's

[Dan Schiavetta]

Every household had a gun (musket) in those days. It’s how people defended themselves. Nowadays we call the police.

Then there’s the question of this preexisting “right” to keep and bear arms. How extensive was it? There’s nothing preventing us from restricting it. Yes, I have the right to drive a car. I have the right to practice law. But I have to jump through a lot of hoops first.

[Mike Hansberry]

"The militia clause is critical here because this is one of only two places on the Constitution where the purpose of a provision is explained (the Patents Clause is the other)."

The militia clause states a rationale for the non-infringement of the right of the people to keep and bear arms, but as a matter of grammar it does not place qualifications on that right. The issue of the militia clause is addressed at length by the court in Heller.

How extensive was the pre-existing right to keep and bear arms?
Well now you are onto something logical. The Heller court answered that as well.

[Randal]

You're correct, the militia clause doesn't place limits on the right as a matter of grammar. It also doesn't place limits on the right as a matter of witchcraft or as a matter of artistic license. There are lots of ways it doesn't place limits on the right. You're falling for one of Scalia's many rhetorical sleights of hand.

It does place limits on the right as a matter of construction. Everyone agrees that the right isn't unlimited. You don't have a right to armed robbery, for example. There are lots of limits. But how do we know what the limits are? Well, as with all rights, we start by looking to the purpose. So what's the purpose of the right to keep and bear arms? Behold! They wrote it down! Easy peasy.

Scalia does a lot of work trying to avoid that obvious analysis, including a resort to History & Tradition. But no amount of rhetoric nor distraction can hide the simple truth that the Second Amendment says, right there in black and what, what it's for.

[Harvey Mosley]

But there isn't a right to drive a car. There is a right to practice law. There has to be because the Bill of Rights guarantees a right to counsel. The right isn't explicit but it is there. The right to keep and bear arms is explicit. It's right there after the not explicit right to burn the flag.

I would be in favor of treating guns just like cars though. Imagine being able to buy a Ma Deuce, M4, or Tommy gun with no paperwork, licensing, tax stamp, background check, or waiting period and to be able to use it in any state in the country!

[Harvey Mosley]

“Nowadays we call the police.” Ever heard the saying, “When seconds count the police are minutes away”? Average 911 response time is about 6 to 10 minutes across the country.

And as recent events have shown us actual police intervention can take a LOT longer than that.

[Randal]

1) This is not particularly true. There are one or two ambiguous references up against a thousand unambiguous ones indicating that bearing arms suggested a martial context. Even if you allow that “bear arms” usually meant “in battle” but occasionally didn’t, the second amendment makes it clear which meaning was intended.

2) The Constitution itself, duh.

3) The right can be an individual right... for the purpose of effectuating militias. There’s no contradiction there. In fact, that’s how it worked. Individuals were expected to keep arms so that they could participate in the militia.

[Tom for equal rights]

Randal - there is zero historical evidence that the right was limited to only when serving in the militia
There is zero language in 2a evidencing any attempt to limit the right to only serving in the militia

Its flat revisionist double speak - inserting words that are not there

[Randal]

https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/

No, the revisionist double-speak is to suggest that the Second Amendment was put there for the purpose of self-defense and hunting, when there’s no indication of that at all, but not for militias, which is what it says it’s for.

Seems pretty fucking clear to me. If you want a right to armed self-defense or abortion, pass another amendment.

[ObviouslyNotSpam]

I've always chuckled at the pathetic Bidenesque notion that the 2nd Amendment has anything to do with protecting hunting.

Obviously, if you're free to turn your home into a military-grade arsenal, "self-defence" on the premises is pretty much a given. But I have not yet been convinced that there is a right to carry concealed weapons into Walmart which is implied by the 2nd Amendment.

[M L]

The "security of a free state" has nothing to do with being able to go about your daily life with the ability to defend yourself from being robbed or murdered? Huh.

That does seem to be exactly what some leftists want for you and your family. To be defenseless against murderous criminals. Jimmy Kimmel and the other celebrities and the politicians will keep their armed security details though, thank you very much.

[Mike Hansberry]

"So what’s the purpose of the right to keep and bear arms? Behold! They wrote it down! Easy peasy."

Where did they write down the purpose for the right to keep and bear arms?
You can hand wave away grammar, but then you are just making stuff up. The text does not say what you want it to say.

"It does place limits on the right as a matter of construction"
Do you know what the word "grammar" means?

[Ed Grinberg]

The “security of a free state” has nothing to do with being able to go about your daily life with the ability to defend yourself from being robbed or murdered? Huh.
That does seem to be exactly what some leftists want for you and your family. To be defenseless against murderous criminals.

Indeed.
I grew up in USSR. It was a very un-free state. But at least you didn't need to worry about getting mugged on the street!
https://en.wikipedia.org/wiki/Sam_Francis_(writer)#anarcho-tyranny

[Randal]

Yes, I know what grammar means. In a sentence like "On Wednesdays, guns are half-price," on Wednesdays grammatically constrains the commitment for the gun sale. In a sentence like "Owing to my winning the lottery, guns are half-price," the gun sale isn't restricted at all, grammatically. But you could conclude that the gun sale isn't gonna happen if it turns out that I lost my lottery ticket.

Where did they write down the purpose for the right to keep and bear arms?

A well regulated Militia, being necessary to the security of a free State duh.

[Mike Hansberry]

Failing at the qualifier thing, now you want to treat the prefatory clause as though it were a conditional. It is not. It is absolute construction, but you knew that all along.

[Randal]

I have no idea what you just said. I certainly don’t want to treat the prefatory clause as conditional. I’m the one arguing that it’s not a grammatical constraint, in case you’ve lost the plot here.

[Mike Hansberry]

"I have no idea what you just said."
Well maybe you do not know grammar after all, but there is this thing called google, try searching for absolute construction.

"I certainly don’t want to treat the prefatory clause as conditional."
IF not, then why did you write the below?
"But you could conclude that the gun sale isn’t gonna happen if it turns out that I lost my lottery ticket."

"I’m the one arguing that it’s not a grammatical constraint, in case you’ve lost the plot here."
You are claiming that the right is limited by the prefatory clause, which is not supported by the text or grammar since absolute construction does not modify the subject of the main clause. As in your examples, it most often provides a rationale for what takes place in the main clause.

[Randal]

As in your examples, it most often provides a rationale for what takes place in the main clause.

Right. That's why I constructed my example that way.

Are you agreeing with me or what? It doesn't feel like you're agreeing with me, but I can't see what your disagreement is.

To reiterate my point: not all meaning arises via grammar. Sometimes you need other tools like logic or inference to figure out what something means.

[Randal]

Here's a good absolute construction example for you. This is closer to what's happening in 2A.

The sun being out, we should play some kickball this afternoon.

But before we do, there's a freak rainstorm.

Grammatically (and logically), my statement "we should play some kickball this afternoon" still stands. But with a moot prefatory clause, it's pretty straightforward to infer that the statement is no longer operative.

[Mike Hansberry]

"Right. That’s why I constructed my example that way."

And your prefatory phrase still does not modify the subject of the main clause.

If it rains (in your example), does the meaning of "we" change?

[Randal]

How many times do I have to say this? Grammatically, the prefatory phrase doesn't modify the main phrase.

But in context, it does. Are you going to go out in the rain to play kickball? You'll be the only one out there.

https://en.wikipedia.org/wiki/Pragmatics

[Mike Hansberry]

"But in context, it does. Are you going to go out in the rain to play kickball? You’ll be the only one out there."

"It" does what? The prefatory clause does not modify the "we" in your example.

Even if someone was convinced that a well-regulated militia is not necessary to the security of a free state, that would not change the command in the main clause, and it certainly would not modify the subject (the right) of the main clause. We seem to agree on that, at least as concerns the sentence structure,

Do you imagine that a provision of the BOR would intend that the right to keep and bear arms SHOULD be infringed if the prefatory phrase becomes moot? Infringing rights does not fit the context of a bill of rights.

Which of the below is closest in meaning to the actual secondment?

1)The only reason Congress does not infringe the right of the people to keep and bear arms is because a well-regulated militia is necessary to the security of a free state.

2)Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms
shall not be infringed.

[Randal]

The answer to that is from my post over the weekend:

Everyone agrees that the right isn’t unlimited. You don’t have a right to armed robbery, for example. There are lots of limits. But how do we know what the limits are? Well, as with all rights, we start by looking to the purpose. So what’s the purpose of the right to keep and bear arms? Behold! They wrote it down! Easy peasy.

The Supreme Court typically looks to the purpose of a given right when working out the contours of that right. So while the prefatory clause doesn’t directly (“grammatically”) modify the main clause, it is the statement of purpose, and in that way it impacts the scope of the right articulated by the main clause.

[Mike Hansberry]

" the prefatory clause ...is the statement of purpose"

The prefatory clause is a statement of purpose for what? For the non-infringement of the right of the people to keep and bear arms. This is basic reading comprehension.

Which of the below is closest in meaning to the actual secondment?

1)The only reason Congress does not infringe the right of the people to keep and bear arms is because a well-regulated militia is necessary to the security of a free state.

2)Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms
shall not be infringed.

3)Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms solely for the purpose of effectuating a well-regulated militia shall not be infringed.

If you chose #3, how is inserting (assuming) that qualifier any different than what Stevens' attempted in Heller?

How would such an assertion be backed up by historical evidence? It was proposed during drafting of 2A to add "for the common defense" but even that was rejected. The same qualifier was in the MA constitution and led to disagreement as to meaning. In Aymette, the TN court understood that language (for the common defense) as limiting to defense of political rights but nonetheless held that the citizens have the unqualified right to keep those arms which are used in civilized warfare, while a later TN court saw the right even more broadly as including defense of self and home.

There are early examples of right to bear arms provisions that include "for the common defense", but where are those examples limiting the right to "service in the militia" or limiting to "the purpose of effectuating a well-regulated militia?"

[Randal]

The prefatory clause is a statement of purpose for what? For the non-infringement of the right of the people to keep and bear arms. This is basic reading comprehension.

Yeah. That's what I've been saying for like a thousand hours.

[Kazinski]

Actually the prefatory clause was to justify a federal interest in guaranteeing a right to keep and bear arms.

Once again from Miller:
"The Constitution, as originally adopted, granted to the Congress power --

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

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

I keep relying on Miller because it can't be asserted that current politics distorted its reasoning to reach a particular end.

Note that Miller asserts that the 2nd was intended to protect "civilians primarily", and one of the purposes is to protect not only "the country", but also "laws".

But of course Scalia went further in filing in the historical background by making the essential connection to the English Declaration of Right, which states " The subjects which are protestants may have have arms for their defense suitable to their condition and as allowed by law." But of course the Constitution and 2nd amendment removed the religious and class based restrictions and put the right beyond the restrictions imposed by legislation.

[Stephen Lathrop]

I’ll bite, just what is the case that the 2nd amendment didn’t intend to protect law abiding citizens right to bear arms?

Well, for starters, an association of the term, "law abiding citizens," with any issue related to arms probably appears nowhere in the historical record of the American 18th century.

I am only guessing, of course. I give myself about a 70% chance of being right. I welcome correction by anyone who has an example to show.

Maybe my guess is really wrong, and there are many such examples. But please do not offer approximations and tell me they mean the same as, "law abiding citizens," means today. That would lead us afield into questions of history and tradition. To show I am mistaken, produce exactly that phrase, in exactly that context.

[ObviouslyNotSpam]

The term you refer to does not appear in the text at all, of course.

So, perhaps you could have another go, this time using the phrase, "just what is the case that the 2nd amendment didn’t intend to protect the people's right to bear arms?"

[Stephen Lathrop]

ONS, it was Kazinski who posited the term. I was replying to him.

My reply to your question is the 2A was intended to protect the people’s right to bear arms, for a particular explicitly-stated purpose—that being militia use of arms under military-style discipline.

Beyond that, any arguments must cope with a historical record, using an investigation constrained by historically customary standards for relevant evidence. That can begin with the simple observation that there is not a single citation available in the record of the creation of the Constitution, or of the 2A, in which any founder mentions any purpose except the militia purpose—which gets mentioned repeatedly.

You can add to that a plausible argument that because state constitutions and state laws protected various other purposes for use of arms, and protected them variously from state to state, it would not have been possible to create a uniform standard to apply nationally without forcing unwanted change on some of the states. It is well known that the convention delegates strove again and again, across a range of issues, to eliminate avoidable controversy. Add that there was no sign of existing dissatisfaction among the states on any national question relating to private arms, except the militia question, and I suggest you get a complete argument which withstands historical scrutiny.

Pro-gun advocates insist on going farther. Invariably, when they do it, the lack of legitimately relevant historical evidence to support the arguments they make forces them to insist on including evidence which cannot be judged relevant by customary historical standards—for instance citations from times post-dating the founding, or citations from across the seas.

One objective of gun advocates seems to be to build a case that a gun culture of some kind existed in America at the time of the founding, and therefor the 2A must have intended to protect that. Historians need only consult state constitutions (as I already mentioned) to discover conclusive evidence to support claims that a gun culture existed, and was protected. The problem is the, “must have,” inference which the gun advocates’ case requires. There is simply no evidence in the historical record to support it, and without evidence customary historical standards say you are just making it up.

Hope that answers your question.

[Michael P]

the 2A was intended to protect the people’s right to bear arms, for a particular explicitly-stated purpose—that being militia use of arms under military-style discipline.

Do you alleged that the “explicitly-stated purpose” is the prefatory phrase, or the phrase “bear arms”? The first ignores the structure, language and plain English interpretation of the amendment, the latter ignores almost endless examples — including in concurrent legal writings — of “bear arms” having a non-militia meaning. (Either answer also ignores that Congress considered, but decided against, adding the qualifying phrase "for the common defense" to the end of the amendment.)

[Randal]

By "almost endless" do you mean "two?"

Anyway, "bear arms" describes conduct, not a purpose. The purpose is explicitly stated in the prefatory clause.

Given that the purpose is laid out right there in the text, why would we reject it and decide no, really they had this other purpose in mind? Like, even if that were true, too bad so sad. That's not what they wrote down, and the text controls. It's so weird that you bunch are all about the Constitution and the text... except in this one case.

[Brett Bellmore]

"My reply to your question is the 2A was intended to protect the people’s right to bear arms, for a particular explicitly-stated purpose—that being militia use of arms under military-style discipline."

English needs to borrow some stuff from formal logic. Parsing your phrasing, there's

"intended to protect [the people's right to bear arms for a particular explicitly stated purpose - that being militia use of arms under military-style discipline]"

Or there's, "[intended to protect the people's right to bear arms] for a particular explicitly stated purpose - that being militia use of arms under military-style discipline"

In the first interpretation, it's a right to keep and bear arms only in the context of militia service. Even this doesn't rest well with gun control, since it implies a right to enroll in a militia even if the government doesn't want you to.

In the second interpretation, it's a private right to keep and bear arms, which is being protected in order to safeguard the viability of the militia system. Fits well with Miller, of course, because it implies a right to the sorts of arms you would use in militia service, military arms.

Your phrasing is syntactically ambiguous. Unfortunately for your thesis, the 2nd amendment didn't use your phrasing, it relegated all mention of militia to the preface, and guaranteed the right of the people unmodified.

Also unfortunate for your thesis is that we can find contemporary statements that back up the latter interpretation. What they were actually concerned with was a deliberate discontinuance of the militia system, and were backstopping it with a private right to keep and bear arms so that a militia could be raised in an emergency even if the militia system had been deliberately neglected. As it has been.

[ObviouslyNotSpam]

I'm not sure how this focus on the "militia purpose" helps gun grabbers.

If the purpose of not infringing on the people's right to keep an bear arms is to facilitate militias, the GCA is toast. The modern-day "musket" isn't a semi-auto AR-15; it's a 9mm handgun with a 15-round magazine, an M16A2 with a 30-round magazine, grenades, anti-tank weapons and medium machine guns.

[Randal]

Totally. Certainly, the assault weapons ban is unconstitutional.

But even though outright bans are unconstitutional, a lot of gun control is constitutional. Requirements to keep guns unloaded and locked when not in use. Registration requirements. Prohibitions on both concealed and open carry almost everywhere. None of those things impact the effectiveness of militias. There’s no Second Amendment reason to prevent a state from enacting them.

[ObviouslyNotSpam]

Yes, the constitutionality of such other measures could certainly be upheld, provided they passed the appropriate standard of review. I'm not sure all of them would.

In any case, as it would trigger an unthinkable military weapons proliferation in every US state and municipality, I'm pretty sure nobody in the gun control movement would hail this interpretation as a victory!

[Randal]

The victory for that crowd would come when the backlash to the proliferation resulted in an actual constitutional amendment clarifying or repealing the right.

I think the whole reason the NRA posse has abandoned the militia clause is to prevent that outcome. Rather than a robust interpretation of the Second Amendment which might not be what people actually want, we’re getting this perverted version that aligns better with popular sentiment. Surprise! Never seen that before.

[ObviouslyNotSpam]

Ah, yes, the "destroy the village to save it" idea.

Might work?

[Brett Bellmore]

Randal, the gun control people thought there would be this horrible backlash to concealed carry reform, too. Remember? “Blood in the streets”? And the movement successfully spread across the entire country, democratically, except for a handful of outlier states.

Now we’re watching open carry spread the same way, with the same predictions. They’re not really very good at predicting backlashes, historically speaking.

And, historically speaking, until fairly recently, there never was this disconnect between civilian and military arms. And things were fine. There is an awful lot of presentism going on in this debate, people predicting horrible consequences if things were allowed that were routine within living memory.

The thing you need to understand about the NRA is that it’s run by people who got dug in during a period when gun owners were losing, and they saw their job as managing a slow retreat, NOT regaining lost ground. At one point they were actually focused on turning the NRA into a historical society, with a fancy museum of all the firearms Americans would no longer be permitted to own.

Look at the Heller case: That wasn’t brought by the NRA, that was brought by the Second amendment Foundation! The NRA actually tried to sabotage the case, because they thought it would be a disastrous defeat. They wanted to join the case with one of their own, take it over, and drop the 2nd amendment arguments.

All the real gains on the 2nd amendment have come through the work of other organizations, not the NRA, which then fund raises off their successes. With the help of the media, which wanted a singular enemy, and picked the NRA to be it, so they write the other groups out of the coverage.

I joined the NRA as a life member after Bush banned the importation of a rifle I'd been saving up to buy. Spent the money instead on a life membership. I soon learned that the NRA wasn't the organization I'd thought it was, and haven't donated any money to them in decades.

I think it would actually be hilarious if NY manages to shut the NRA down. All those members, moving on to organizations that actually fight the fight. It would be the most self-defeating 'victory' the gun control movement ever won.

[Randal]

Then, great. If there's no backlash, then there's no problem and everyone's happy.

[Brett Bellmore]

"Prohibitions on both concealed and open carry almost everywhere."

You're writing the "and bear" out of the 2nd amendment. It's agnostic as to open vs carry, but one of them MUST be permitted.

[Randal]

Naw, "bear arms" doesn't mean carrying them around town. That's been shown by e.g. https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/

[Brett Bellmore]

The usual gun grabber take on the "militia purpose" is, as Stevens demonstrated in his Heller dissent, to transform it to a right to be armed as the government wants you to be, while in actual militia service. And not otherwise.

The "and not otherwise" being the operative part.

This is, in fact, the precise reason the 2nd amendment was written the way it was: To preclude limiting gun ownership to militia members, and then extinguish it by not having a militia.

[Tom for equal rights]

Brett - concur

Another good explanation of why 2A protects both rights
the right to form militia's for the common defense and the right to keep and bear arms for self defense

remove the only explanitary clause
A well regulated militia, the right of the people to keep and bear arms, shall not be infringed.

[Randal]

Tom, they did have the word 'and' in the 18th century. Your reading is bizarre and unnecessary.

[Randal]

Is that the usual gun grabber take? Maybe, but it's pretty easily defeated.

The better take is that, as we know, the militia includes all fit males, which these days we would expand to all fit people, or perhaps all fit citizens. You probably could make the case that individuals not fit for militia duty could constitutionally be prohibited from keeping and bearing arms.

[ObviouslyNotSpam]

I see we are in agreement that the 2nd Amendment protects an individual right to keep and bear arms (with the only written purpose therefor: to facilitate the formation of State militias from the body of people bearing private arms).

Is it your follow-up contention that the right may nonetheless be infringed, just as soon as a "free State" decides it will never, ever call upon the militia to defend its security?

[Stephen Lathrop]

ONS, my contention is that states are free to regulate arms just as they please, except that in doing so they must not do anything which unreasonably burdens the militia clause—which sets forth explicitly the specific liberty the 2A was enacted to preserve.

I remain mystified why gun advocates would not favor that interpretation. For starters, there is a powerful historical argument to support it. State-by-state protection of gun rights, according to varying state policies, was the status quo at the time the 2A was enacted.

On a practical basis, many states—probably all the states most attractive to gun advocates—would regulate with great liberality on behalf of a pro-gun agenda. Other states where high gun prevalence is politically unpopular would probably regulate to reduce gun prevalence, if not in absolute numbers, at least with regard to public encounters with armed individuals, and likely with regard to the types of arms available. Gun fans would be free to avoid those states.

Pro-gun advocates ought to favor both outcomes. State-by-state regulation would ameliorate ever-growing pressure which otherwise threatens gun liberty nationally. Every mass killing increases that pressure, and it is a one-way ratchet. Nothing seems to reduce it. It is unwise to suppose that such a consistent political trend will never arrive where it seems to be headed.

Doing regulation the way I suggest would have the further advantage of defusing in advance the most likely ground for a frontal attack on the 2A, in a more-liberal Supreme Court, whenever political happenstance enables that. All the gun rights cases from Heller onward will become vulnerable at once, on the same grounds. The argument will be simple. History and tradition commands it.

Heller and all its spawn ignored that historical evidence I mentioned, that when the 2A was proposed every personal gun right except the militia right was guaranteed by state constitutions, not by the federal government. Thus, all those cases are egregiously wrong on that basis, and overturned. The militia clause is restored full-strength to the 2A. Other gun rights questions go to the states. If you want to, you can think of that as a Dobbs-like resolution of the guns controversy.

You might suppose that would just accomplish what I suggest anyway, so why not keep the present regime going as long as possible, and use what I recommend as a fall-back? The answer is the Supremacy Clause. How that might figure during a national upheaval focused on gun policy is a wild card gun advocates would be wise to get out of the deck now, before any such issues come to a head.

To accomplish that will require foresighted compromise. Negotiate a national state-by-state compromise now, and make it work for a while to everyone’s satisfaction. Impetus for a more-aggressive national solution would recede. To do that would put long-term security for gun rights on a more politically reliable basis.

[Kazinski]

Well at the founding felonies were capital crimes, so yes felons were excluded from the right to bear arms.

[Jonathan Affleck]

I am surprised that the authors did not take a look at the rulings of SCOTUS in patent litigation. Nowhere else in law does originalism, history, and law play such an important role.

The result has been complete incoherence.

This quotation from Plager, Circuit Judge, concurring-in-part and dissenting-in-part in Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1348 (Fed. Cir. 2018) makes me want to laugh and weep simultaneously.

Today we are called upon to decide the fate of some inventor's efforts, whether for good or ill, on the basis of criteria that provide no insight into whether the invention is good or ill. Given the current state of the law regarding what inventions are patent eligible, and in light of our governing precedents, I concur in the carefully reasoned opinion by my colleagues in the majority, even though the state of the law is such as to give little confidence that the outcome is necessarily correct. The law, as I shall explain, renders it near impossible to know with any certainty whether the invention is or is not patent eligible. Accordingly, I also respectfully dissent from our court's continued application of this incoherent body of doctrine.

[Eric VonSalzen]

Gee whiz! This post has been up for 4 hours, and the paper is 38 single-spaced pages. Be honest: if you posted a critical comment on this post, did you read the paper before reaching your conclusion? If you can honestly say you did, and you visit North Carolina any time soon, I'll buy you a drink -- speed readers deserve a reward.

[Stephen Lathrop]

Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court's embrace of originalism?

No. Those uses (abuses, actually) of history and tradition can only be reconciled with unprincipled, results-first, arbitrary judicial malpractice.*

*I have not paid attention to Kennedy, so my comment applies to Bruen and Dobbs only.

[Randal]

Kennedy’s the worst. Not only to they bypass the text of the Constitution to skip straight into “History & Tradition,” they also bypass the facts of the case. It's a completely advisory opinion, the advice being, let's all pretend we're living in a warped, fantasy version of the late 1700s.

[ragebot]

If any students in school at the time the Constitution was being considered opened their trap the teacher would respond with a swift kick in the ass. There was no crap about social promotions and affirmative action. You went to school to learn, not to be a SJW.

[Stephen Lathrop]

ragebot, your suppositions about behavior tolerated in schools during the 18th century may have application in some cases. Conspicuous cases to the contrary are commonplace, and show up in the personal educational histories of many of America’s founders.

[Sarcastr0]

Going to school included learning to be a gentleman or lady. That included understanding social and ethical norms.

Schools now are actually a lot more tolerant of cultural heterogeneity than back then.

In general yearning for things to be the way they were in the late 1700s is fucking nuts.

[David Nieporent]

You know that Horace Mann wasn't doing his thing until like a half century after the time the Constitution was being considered, right?

[Tom for equal rights]

Stephen Lathrop 15 hours ago
Flag Comment Mute User
Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

No. Those uses (abuses, actually) of history and tradition can only be reconciled with unprincipled, results-first, arbitrary judicial malpractice.*"

Lanthrop -
Abuse of history - you mean like Stevens abuse of history where claim that 2A limits the right to keep and bears to only when serving in the militia. If so, can you point to any historial piece of evidence , historical writing, debates, etc where the right to keep and bear arms was intended to be limited to times when serving in a militia.

Of course you can point to any historical evidence to the effect since absolutely there is zero evidence of such limitation .

Please attempt to be honest with your version of history

[Randal]

Are you retarded or just living in a bubble?

https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/

These researchers generally agree that “bear arms” was used mostly in its idiomatic or military sense during this period, but not solely or exclusively so. Baron concluded that the natural use of the phrase was “almost always” in a military sense, while Goldfarb found that nearly 95 percent of all uses of “bear arms” conveyed the idiomatic sense relating serving in the military. Blackman and Philips, examining a smaller sample, found that the “overwhelming majority” of uses of were in the military context.

If you’re wondering whether the Constitution uses “bear arms” in its almost-always militaristic sense or its rare non-militaristic one, you just need to check back a few words to the beginning of the sentence.

[Tom for equal rights]

Randal - nice job of cherrypicking

The following sentence in the same paragraph

"Josh Jones, using somewhat different search and coding parameters, found that the figurative or specialized military sense of “bear arms” was used in 66 percent of relevant uses, the literal carrying sense in 21 percent, including both military and civilian contexts, and the remaining 13 percent were too ambiguous to place in either category."

The split of 2/3 is consistent with the volume of historical writing discussing the right for common defense and the 1/4 of historical writing discussing both the right for the common defense and for the individual right for self defense.

It is the historical writings of keeping and bearing arms for self defense that you and lathrop keep trying to pretend never existed.

[Randal]

Ha lol you've gone from "there's zero evidence" to "two-thirds of examples are evidence." I'm taking that as a win.

It doesn't matter whether it's two thirds or 95% or almost all. The question is, which meaning is used in the Constitution? The militia clause makes it perfectly clear. There's no ambiguity.

[Tom for equal rights]

Randal 31 mins ago
Flag Comment Mute User
Ha lol you’ve gone from “there’s zero evidence” to “two-thirds of examples are evidence.” I’m taking that as a win."

Randal - the master of cherrypicking statements - Typical that you intentionally mistate what was written to reach your erroneous conclusion

My statement was that there is zero historical evidence that there was a limit on the right to keep and bear arms to only when serving in the [a] militia. Again, you provide zero support of any contrary historical record.

Your citation is evidence that 2a protected 2 separate and distinct rights A) the right to form militias for the common defense and B) the individual right to keep and bear arms including self defense. Read the rest of the citation related to Josh Jones' statement.

[Randal]

Fair enough, I agree that your formulation "while serving in a militia" is overly narrow. Yay!

But two distinct rights? I don't think that's a compelling interpretation, just grammatically. The Constitution talks about "the right." One.

[Brett Bellmore]

Bearing arms while in the militia isn't a right in the first place, it's a duty. It's just like testifying in court under oath isn't an exercise of 1st amendment freedom of speech.

So there's only the one right, the private right. It's a right of private citizens to be armed in a manner suitable for military purposes.

Self defense, hunting, target shooting, they're not 2nd amendment, except to the extent target shooting contributes to proficiency with firearms suitable for military use. They're either 9th amendment rights, or just protected because you can't make a genuine rational basis case for a law barring ownership of single shot guns to people who have a right to own machine guns.

[ReaderY]

History and tradition is the Bowers v. Hardwick standard. There was period between Bowers and Casey, for example Webster, where lawyers representing abortion clinics attempted to argue that abortion was deeply rooted in this nation’s history and tradition (whereas sodomy wasn’t), accepting the Bowers standard and attempting to make their arguments fit. Casey departed from the history and tradition standard, and Lawrence was the result.

But Glucksberg, between Casey and Lawrence, nonetheless was based on it. It lived on, seemingly in a state of suspended animation, and came back with a bite with Dobbs.

We seem to have at least two different, parallel standards. If the Court wants to strike down a law, it references Casey/Lawrence. If it wants to uphold it, it cites Bowers/Glucksberg.

It’s completely schizophrenic. It’s sort of ceremonial legalism, where the court actually does whatever the hell it wants, but uses the forms of legal reasoning including wearing robes, going through briefing, pretending to deliberate, and pretending to apply stanadards based on precedent. Having flatly contradictory standards that it can call on, whichever will lead to the result it wants, is very convenient for this.

[ReaderY]

And if the court wants to change the result, all it has to do is switch standards. Bowers got overruled by switching to the Casey standard. And Casey got overruled by switching to the Bowers standard!

No fuss, no muss.

[Brett Bellmore]

The essay has once again demonstrated the horrible cowardice the Court always exhibits when confronted with the Slaughterhouse decision.

Damn it, grow some balls and just come out and say that Slaughterhouse was wrong the day it was decided, a judicial atrocity on a par with Dred Scott. You've warped 14th amendment jurisprudence too long by the failure to shitcan that decision!

[Sarcastr0]

Understanding that there are concerns other than making the logical edifice of law smooth and neat is not cowardice.

There is plenty of originalist evidence for substantive due process (Though I find Barnett's scholarship in the area too purposivist to fit the audience), if that floats your boat.

Citing one part of the 14A but you want it to be another won't kill you or pick your pocket. The Court has better things to do.

[Brett Bellmore]

Continuing obedience to a bad ruling, and just inventing ad hoc work arounds to avoid coming out and admitting it was a bad ruling, IS cowardice. If they had actually continued to enforce Slaughterhouse, you might chalk it up to some principle. But they're not, they're doing everything BUT admitting it was a bad ruling.

"There is plenty of originalist evidence for substantive due process (Though I find Barnett’s scholarship in the area too purposivist to fit the audience), if that floats your boat."

"Substantive due process" can make some sense in the context of process rights. It makes none in the context of non-process rights. Originalists trying to justify substantive due process is just that cowardice at work. It's what has been gradually undercutting the internal consistency of originalism: Being too cowardly to follow the logic to its end, they start a process of piecemeal exceptions to accommodate mistakes they are afraid to tackle.

"Citing one part of the 14A but you want it to be another won’t kill you or pick your pocket. The Court has better things to do."

The problem with substantive due process, aside from the invitation to treat our rights as an ala carte menu, is that the 14th amendment guarantees EVERYONE due process, but only CITIZENS privileges and immunities.

One consequence of incorporation via the due process clause, then, is that rights are most naturally extended to every "person", regardless of citizenship status. You have a hard time being intellectually consistent, and still denying any of the rights to non-citizens. The flip side of that is that the Court becomes reluctant to incorporate rights at all, where they would make no sense to grant them to non-citizens.

Look at the recent gun cases, like Heller. The Court explicitly analyzes the phrase "right of the People", effectively limiting it to citizens and those in the process of becoming citizens. This is P&I reasoning! The Court is already using the P&I clause to incorporate rights, they just can't come out and say so, because they don't want to challenge Slaughterhouse directly.

It's long since time for them to bite that bullet, and stop warping 14th amendment jurisprudence.

[Rev. Arthur L. Kirkland]

Continuing obedience to a bad ruling, and just inventing ad hoc work arounds to avoid coming out and admitting it was a bad ruling, IS cowardice.

I expect conservatives are going to develop a different view of that sentiment soon enough. One might say their devotion to that approach is destined to be aborted.

[Sarcastr0]

I mean if your functional upshot is being shittier to noncitizens, the EPC has something to say on that, and also you want a more negatively nationalist country. That is bad, and you should feel bad.

The Court explicitly analyzes the phrase “right of the People”, effectively limiting it to citizens and those in the process of becoming citizens. This is P&I reasoning!
Except this was not forced by the current legal regime around the 2A or SDP. Not is it required to deconflict any citizen/noncitizen ambiguity. It's just the Court being pro gun while also being negatively nationalist. Just like you want!

The law is not intellectually consistent. It never has been, and never will be. It is a human-created thing. It'd be nice for it all to lock in like the law of physics, sure. But on the stack of things to worry about, intellectual consistency is pretty low on the list.

[Brett Bellmore]

Yeah, it's shittier to be a foreigner in a country than a citizen. This is somehow controversial? Maybe you should visit France and demand your rights as a Frenchman?

[Sarcastr0]

Plenty of EPC caselaw on this. Doesn’t cite a lot of French precedents though.

It is quite clear yet again the outcome you want is exactly aligned with the change in the law you think is right.

And as usual your proof of correctness is mostly your own certainty, and the outcome you want is bad.

[Brett Bellmore]

Of course there's plenty of EPC caselaw on this. The point is that it's WRONG EPC caselaw, because the Slaugherhouse cases were WRONG. Wrong on a Dred Scott level, out of the same motives.

The Court was deliberately spiking the 14th amendment. I don't think this is even controversial.

[Sarcastr0]

EPC says persons, so you’re WRONG.

WRONG on the Plessy level, for the same reasons.

The Slaughterhouse Cases are disfavored. But so is your take on the EPC, so your appeal to general wisdom is so selective as to look disingenuous.

[Brett Bellmore]

You know what? I'm perfectly comfortably with agreeing with Thomas about this, and you thinking I'm wrong. I'm even comfortable with the courts ruling wrongly. Unhappy, but it doesn't personally move me, because I distinguish between what the law says, and what will happen if you get into a courtroom.

I won't be the one shocked if the Supreme court finally shitcans Slaugherhouse, anyway, and admits that incorporation happens through the P&I clause, the way the author of the amendment said it did.

[Sarcastr0]

Fine - say YOU agree with Thomas.

Don't say everyone who disagrees with Thomas is lying about the law.

[ReaderY]

.

[ragebot]

The dirty little secret that gets swept under the rug is that the agreement to get the states to sign the Constitution required multiple compromises and to some extent vague language. No one with an IQ above room temperature would claim the states would have signed the Constitution if there was any limitation related to firearm ownership. The same goes for any government involvement in subsidizing abortion (an don't try any bullshit about Planned Parenthood money not being fungible). While I get the 'public good' stuff I have little doubt anything in the Constitution about government funding any type of health care would have been a deal breaker. Forget about any free speech bullshit in school, if students at the time the Constitution was ratified dared open their mouth the result would be a swift kick in the ass from the teacher.

Bottom line is all three of these rulings would have been viewed by those who sighed the Constitution as fitting in with the times just fine.

[Randal]

Uh huh. But then the 14th Amendment happened.

You could say that its adoption was even more coercive against (at least some of) the states, but that's what you get for losing an insurrection I suppose.

[ragebot]

What is interesting about 14A is that when it was passed the states that bore the brunt of it were represented by a somewhat undemocratic group. As wiki notes about Henery Revels, the first black elected to the US Senate:

"In 1870, Revels was elected by a vote of 81 to 15 in the Mississippi legislature to finish the term of one of the state's two seats in the U.S. Senate, which had been left vacant since the Civil War. Previously, it had been held by Albert G. Brown, who withdrew from the U.S. Senate in 1861 when Mississippi seceded."

I doubt anyone would claim this lopsided win was an accurate representation of the feelings of all the voters of Mississippi. Maybe even more lopsided was the vote, on party lines, to seat Revels; as wiki describes.

"On February 25, 1870, Revels, on a party-line vote of 48 to 8, with Republicans voting in favor and Democrats voting against, became the first African American to be seated in the United States Senate."

Point is both 14A and 15A were more the result of winning the Civil War than a realistic assessment the feelings of the population.

[ObviouslyNotSpam]

Which means they could have been repealed as soon as the "feelings of the population" normalized. But they were not.

[Brett Bellmore]

No, they couldn't have. Amendments can only be repealed by amendments, and amendments require a supermajority.

The North didn't have enough votes to honestly ratify the Reconstruction amendments, which is why they had to resort to some pretty ugly tactics, like holding votes on them with Union soldiers in the legislative chambers during the vote. Delaware, the slave state that wasn't under military occupation, didn't ratify the 13th through 15th amendments until the 1900's.

At the same time, the South didn't have enough votes to repeal the Reconstruction amendments once those soldiers were gone, (Though they tried to rescind their ratification votes in some cases, even before the ratification was complete.) And, unlike the North, they had no way to coerce unwilling states into ratification of their proposals.

So, once the amendments were considered ratified, there was no going back.

[bernard11]

IIUC, ratification of the 14th, at least, was a requirement for readmission.

That's a pretty mild consequence of losing a war, all things considered.

[Brett Bellmore]

You still make a hash of Article V by permitting coerced ratification. It's a terribly ugly precedent which could eventually come back and bite us.

Now, don't get me wrong, I LIKE the Reconstruction amendments. It's just that liking them doesn't blind me to the way they were ratified in a very dubious manner.

You know, the union could have ratified all those amendments without the Confederate states, and they'd have been legitimately part of the Constitution when those states were readmitted. Except, of course, that they were having it both ways, claiming the Confederate states had never left, while denying them representation in Congress, and eventually defining a quorum in Congress as excluding the Southern seats. But they had no way to ratify an amendment without them, without admitting they'd actually left the Union, which they were unwilling to do.

But they were willing to get the ratifications at gun point.

[Sarcastr0]

War was an ugly enough thing, for an ugly enough purpose, it rather obviates any issues with coercion.

Your love of formalism over functionalism makes things get pretty silly sometimes.
What if we had a war over slavery, and then just went back to having slaves?

[Brett Bellmore]

I point this out because there's a push on, starting to gain ground, to apply Civil war era precedents that they got away during, and in the wake of, and ugly war, in peace time.

Like applying Section 3 to people never convicted of insurrection, just because it was applied during Reconstruction to people who had literal military records fighting against the Union. And never mind that more recent, non Civil war precedent had it hinging on a conviction.

Coerced ratification is an ugly precedent, which has to be rejected even if we like the amendments whose ratification were coerced, or else sooner or later we'll see it again.

[Sarcastr0]

The era immediately after the war was not exactly peacetime. Rise of the Klan, continuing federal occupation, lynchings...

Post-war 'this is the new rules you will follow' is not an ugly precedent; it's not even a necessary precedent. It's an inevitable precedent.

The fact that those rules applied with as much force to the winning side is the notable part.

[Brett Bellmore]

If you do in peace time what people had only previously gotten away with because of a civil war, guess what: You lose your peace time, and GET a civil war.

[Sarcastr0]

This was the *upshot of the Civil War*. It wasn't peacetime, as I explained!

And hey guess what we didn't get another civil war over the Reconstruction Amendments.

And if we did, the South would still be the bad guys, no matter how much you carp over how ugly post-war coercion to be less racist looks to you.

[Ed Grinberg]

Now, don’t get me wrong, I LIKE the Reconstruction amendments. It’s just that liking them doesn’t blind me to the way they were ratified in a very dubious manner.

You wouldn't make a good leftist.
https://en.wiktionary.org/wiki/the_end_justifies_the_means

[ObviouslyNotSpam]

So we're going for the "unequal treaty" argument, I see. Like China.

[Brett Bellmore]

You don't grasp the point? Neither side really had a supermajority necessary to get an amendment on the topic, but the North was, for a while, in a position to compel ratification, while the South never was.

That's the hell of judicial 'amendments' to the Constitution, too: Suddenly you need a supermajority to put the Constitution back the way it was.

[Sarcastr0]

The Civil War Amendments are good. And necessary for the US to grow as a unified nation.

The fact that some traitors and slavers didn’t give full consent doesn’t render them illegitimate. As noted by ONS subsequent generations in the former Confederate States believe they are legitimate.

Just a few Lost Cause assholes out there. Types even Nozik counsels to ignore.

[Noscitur a sociis]

the states that bore the brunt of it

Bore the brunt of granting citizens due process and protecting them equally?

[Stephen Lathrop]

No one with an IQ above room temperature would claim the states would have signed the Constitution if there was any limitation related to firearm ownership.

I insist on an opposite interpretation. At least several states would not have ratified the Constitution had it contained a single standard for firearms ownership to be applied alike to all the states. Consider the question whether slaves, as persons, were to have a right to own firearms. It was not possible to draft any measure, pro or con, to address that question which would have passed muster among all the states. Which is the likely explanation for why the Constitution's historical record shows avoidance of the question, thus leaving various states at liberty to choose various provisions to cover such questions.

[Michael P]

You insist on a lot of silly things, for example inventing largely-irrelevant "historical facts" and demanding your disputants find a counterexample. Maybe you should read a book or two about how to properly perform historological research, hm?

[Rev. Arthur L. Kirkland]

The Second Amendment interpretations favored by gun nuts are relatively young (or, in some contexts, not yet born). Those interpretations seem unlikely to age well as America continues to improve against the wishes of conservatives..

[ObviouslyNotSpam]

When do you imagine the "improved" American people will finally repeal the 2nd Amendment?

Just trying to plan my week.

[Tom for equal rights]

Ragebot comment - "No one with an IQ above room temperature would claim the states would have signed the Constitution if there was any limitation related to firearm ownership."

Agree - There is zero historical record of any debate on a limitation the RKBA to times only when serving in the militia. Does anyone with an IQ above room Temperature think that if there was an intention to limit the right to only when serving in the militia that there would have been zero objections.

[Stephen Lathrop]

Tom, we do not have to speculate about what, "would have," happened. Anytime you find yourself writing, "would have," about history you are probably doing it wrong, as you are now.

The militia clause says what it says. The purpose intended was discussed by many, always, without exception, in terms of a militia purpose. No objections were recorded. So the only way to posit such objections is by making them up, which is what you are trying to do now.

Beyond that, of course, is certain knowledge, utterly uncontroversial, that other uses of arms got state constitutional protections, with specific protections varying from one state to another. It would thus have proved impossible to create one standard to be applied alike nationally to all the states without thereby creating objections if states which preferred their own established systems of regulation were forced to conform to the federal standard instead, under the supremacy clause.

Your speculations are far-fetched, and historically unfounded. You are making stuff up.

[Tom for equal rights]

Stephen Lathrop 4 mins ago
Flag Comment Mute User
"Tom, we do not have to speculate about what, “would have,” happened. Anytime you find yourself writing, “would have,” about history you are probably doing it wrong, as you are now."

"The militia clause says what it says. The purpose intended was discussed by many, always, without exception, in terms of a militia purpose. No objections were recorded. So the only way to posit such objections is by making them up, which is what you are trying to do now."

A - "Would have " Read Ragbot's and understand comment - Its a great indicator of why your interpretation of the militia clause limiting the right to keep and bear arms is blatantly wrong. Its because there was zero historical evidence that the right was intended to be limited to only when serving in the militia. Ragbot's reference to "would have" if there had been discussion of a limitation, then there would have been evidence of an objection.

B) your interpretation of the militia clause suffers from the same error than Stevens makes in Heller. It cherry picks the historical evidence he likes and ignores the historical evidence that discussed the common defense and self defense.

As an avowed historian, you cant claim superiority of your interpretation of history by pretending that the historical evidence of self defense does not exist. That is where you and Stevens are making thing up. Historically unfounded. Further you know full well that you and Stevens have attempted to erase the historical record from your memory

[Stephen Lathrop]

Tom, I don’t think you are in bad faith, just careless. I have disavowed claims to be a historian on this blog so many times I have long since lost count. I did get graduate training in historical methods, and a few years back decided to explore those questions further, which I have been doing.

Permit me to make a suggestion to you about history. It is a great problem if historical thinking goes unbounded. If that happens anyone is free to say anything, and many rush to do it. Utterly false narratives abound, and claim to be historical. It is trivial to prove the falseness of many of them.

So a cautionary principle has become established. To make a claim about a historical event, historians expect you to present relevant evidence to support the claim. Note something about that. An event is different than a state, a condition, a trend, a norm, or a custom. All of those imply activities and insights dispersed among many, shared alike, and likely fairly obvious from many sources dispersed throughout the historical record. You could make false claims about any of those too, but colorable claims are easy to make, and often easy to support. A few examples, without much need of particulars, will get the ball rolling. For non-events, nobody much objects to that, until something crucial seems at stake. Then more evidence may be demanded.

The standard of evidence for events is harder to meet. Events imply participants with names, doing particular things, at recorded times, in particular places, and likely for explicit purposes. To claim an event occurred, which is to say to establish historical relevance for the claim, you need to be prepared with at least most of that information: times, places, people, purposes, actions taken.

With that as preface, note that drafting of the 2A was an event. The existence of a gun culture at the time of the founding was not an event, it was a general state or condition of society.

Different standards of evidence apply. That is not an arbitrary rule, imposed by elites to bolster their authority. It is a simple distillation of conclusions taught by experience over a century or two of scholarship. In some kinds of situations great precision is required of the evidence, or a risk of later falsification becomes too imposing. In other easier cases, less precision of evidence suffices to deliver the same kind of reliability.

Thus, to meet the stringent standard of proof needed to claim the 2A was intended to protect throughout the nation a federal right of self-defense with a gun, you have to come up with specifics linked to the times, places, reasons, and citations from specific people who participated. That has been tried again and again, and no one has succeeded in doing it. There cannot be many questions in American history which have received more attention. That almost surely means it did not happen.

On the contrary side, you demand proof to show an event which almost no historian claims ever happened—that the 2A was drafted to limit the right to keep and bear arms to a militia purpose only. No one can find relevant evidence for that either. That too almost surely means it did not happen. But note, that does not mean logically that the opposite did happen. It does not mean at all that the 2A did protect an individual right of self defense with a gun.

So I do not assert those things, or anything like them. I say instead that reliable historical evidence is easy to find that a gun culture existed to serve multiple and varying purposes throughout the states, including self-defense with guns. It was protected variously by provisions in state constitutions tailored by state politicians with an eye to particular state requirements.

I can say that without much research, and with a high level of confidence, because I am talking about a state or condition of society that is all but self-evident in the historical record. But also because I do not need to assert any particular event enabled it— and especially not any event about which we have proof it almost certainly did not happen—for instance, your assertion that the drafting of the 2A was intended to protect a right of self-defense with a gun. I have looked for that evidence myself, and like everyone else who has tried, I could not find it.

To summarize, there is impressive historical evidence to show the 2A was drafted to protect a militia right. There is no evidence to show it was drafted to protect any other gun right. There is no need to show the 2A did limit other gun rights, because they are mostly not limited. Other gun rights were protected variously and for different purposes by state constitutions. The 10A of the U.S. Constitution constrains Congress from interfering with those state powers to protect gun rights as they saw fit.

[Tom for equal rights]

Lathrop

Your the claimed historian

Tell us where to find any historical writings indicating the right to keep and bear arms in limited to only when serving in a militia

Tells what word in 2A would limit the right to keep and bear arms to only when serving in the militia

Tells us what other of the 9 amendments to the Bill of rights limits an individual right instead of protecting an individual right.
Be honest

[Randal]

All of the rights in the Bill of Rights are limited. You don't have an unlimited right to free speech or free exercise, for example. Take free speech. We have a pretty good idea what the purpose of the right to free speech is, so we're ok with limits on free speech that don't impact that purpose, such as defamation and inappropriate obscenity.

In the case of the Second Amendment, the purpose of the right is explicit. We don't even have to guess.

[Tom for equal rights]

Randal - nice dodge -

all the BoR are there to protect a right, not to take a right away.

Your construction of 2A takes a right away.

[Randal]

Huh? I don't get that. The right to keep and bear arms is protected by the second amendment.

[Procyon Mustelid]

And then those people died, and their views should have become irrelevant.

[M L]

I have not read the thread, but let me guess.

It is full of leftists saying:

Originalists are lying, they are just using history selectively to get the outcomes that they want politically! No, that doesn’t mean the answer is to use history more completely and have better originalism, in fact, I disagree with originalism! This whole idea that the words in the Constitution can have a fixed meaning is totally ridiculous! No, I won’t spell out my alternative theory of Constitutional interpretation, but if you are too flaming stupid to figure it out, it goes like this: I win, you lose!

[Randal]

This part is true:

Originalists are lying, they are just using history selectively to get the outcomes that they want politically! No, that doesn’t mean the answer is to use history more completely and have better originalism,

The rest is strawmen.

[Ed Grinberg]

As Prof. Bernstein put it:

“Law is politics,” and only politics, according to a mantra popular on the legal left, and therefore the law should not be an independent constraint to doing the right thing politically.

Any legal / constitutional arguments they (leftists) make are insincere.

[M L]

"strawmen"

So nobody disagrees with originalism?

Nobody disagrees that the words in the Constitution have a fixed meaning?

The nobodies who disagree with originalism are willing to spell out their superior alternative? Can you do so if you are such a nobody?

[Randal]

I don't see anyone arguing that the words don't have a fixed meaning.

My alternative is closer to textualism. I'm ok with Randy's use case #1 which is, if you need to know what a word like "militia" means, sure, we should look at what it meant then, not what it means now.

But we're perfectly capable of reading and understanding English. Once we know what the words mean, we can apply them to today's cases. This idea that we need to decide Constitutional cases the same way that the original Supreme Court would've decided them is the stupid, nonsensical, outcome-oriented part. That's Randy's use case #s 2, 3, and 4.

[M L]

That's all suspiciously anodyne. What the original Supreme Court would have decided is certainly persuasive regarding original meaning, though not dispositive.

[Randal]

Suspiciously anodyne? I suppose so, compared to what your right-wing grievance-stokers are telling you about us.

Anyway, there are two questions. One is the value of "what would the original Supreme Court have thought." I agree with you that it's interesting but not dispositive. But as Mr. Lathrop says, it's also fundamentally unknowable. Not a good basis for a doctrine.

[M L]

Come on man. You aren’t fooling anyone with this “ackshully living constitutionalism isn’t even a thing, that’s just a figment of your imagination & that part of 1L conlaw class didn’t happen” gaslight.

“I agree with you that it’s interesting but not dispositive.”

Interesting sure, but more importantly, highly persuasive.

“it’s also fundamentally unknowable”

Only to roughly the same extent that a fixed, original meaning of the Constitution is unknowable. Which is your real argument that you are shy of making. I acknowledge there is some kernel of truth in it, it’s just not to a very great extent in practical outcome, but the kernel of truth is what makes any big lie compelling.

[Randal]

Wrong. "How the original Supreme Court would've ruled on a case" is fundamentally unknowable because it's a fundamentally incoherent question, for a number of reasons.

1. It's counterfactual
2. It's mind-reading
3. It's inconsistent -- there have been amendments and other cases that the original Supreme Court wouldn't have known about
4. The original Supreme Court would have no frame of reference for our cases

The Constitution, on the other hand, is a written document. Reading and applying it was the intended "modality." Figuring out what it means is no harder that with any other piece of writing, say, in a foreign language. Sure, you'll never know precisely what the author was thinking, but that's totally different from trying to guess how the original Supreme Court would react to a modern case.

But also, it's the wrong question. The original Supreme Court had its own biases and blind spots and political agendas and preconceived notions. Why should we trust them any more than our current justices? The Constitution was aspirational in a lot of ways. The distance in time and benefit of hindsight can give us a clearer understanding of the Constitution than the relatively cramped perspective that they had at the time.

[M L]

“How the original Supreme Court would’ve ruled on a case” is not the right question, I agree. It's just a highly useful illustrative thought exercise.

I agree mostly with the rest of your comments, but the same points you are making apply to originalism and the inquiry into textual meaning generally. The Framers as well as "the People" also had their biases, blind spots, political agendas, and preconceived notions, just as the original Supreme Court did. That's neither here nor there. Where the Constitution needs changing, it is supposed to be done by amendment. We should be far more concerned about the biases, blind spots, political agendas, and preconceived notions of those who wish to ignore that.

[Randal]

The Framers as well as “the People” also had their biases, blind spots, political agendas, and preconceived notions…. That’s neither here nor there.

Well, it is here or there, since we’re talking about the role of History & Tradition, and how seriously we should take various bits of evidence concerning how those 18th century people thought about modern issues (whatever that even means).

I think you look at what they wrote down and ratified, the Constitution, and no further.* I don’t care that some landowner in West Virginia had to pay five shillings for an open-carry license in the late 1700s. That’s just distracting garbage.

* There are occasionally common law inquiries that are useful. There’s an interesting intersection between common law and H&T which I haven’t seen much discussion about, and I don’t have a good early intuition about.

[M L]

So you read the text, but can't resort to legal writings, dictionaries of the time, ratification debates, the Federalist Papers, etc. for supporting evidence. Instead, it's just "this means X" "no it means Y." That's a new one to me. And this is what is taking the place of living constitutionalism?

[Randal]

No, like I said, I'm ok with Randy's use case #1 for looking at history, which is to understand what the words mean. Dictionaries are like the core resource for that, but contemporary examples are fine too, corpus linguistics, etc.

But that's just looking at what the words mean. Not how they should be applied to a particular case. The fact that a landowner paid 5 shillings for a license in 1794 doesn't tell me anything about what the words of the Constitution mean.

Read Randy's paper if you don't understand the distinction.

[Brett Bellmore]

You have to remember that, in writing the Bill of Rights, the founders weren't guarding against imaginary evils, but real threats. So you can't honestly figure out the scope of rights by assuming that not one law at the time would have violated them.

You have to look at the general trend, not look for outliers. Otherwise you end up doing things like claiming the Alien and Sedition acts define the 1st amendment.

[Randal]

Just because there were specific real treats at the time doesn’t mean those are the only real threats that the rights protected against, nor that they remain real threats. That’s the “snapshot in time” fallacy. The rights are more abstract than that.

[M L]

"But that’s just looking at what the words mean. Not how they should be applied to a particular case."

Ultimately, this is a distinction that cannot be sharply drawn at the most granular levels and is subjective. But obviously it is an important general construct and I agree it is important to try and delineate.

You can't always know how a very general rule applies to a particular case. There are things now that didn't exist then, such as technologies. No two situations are exactly the same. When the facts change, the application of law to the facts also necessarily changes. Etc.

So yeah. But when you are using these basic insights to try and implement the progressive agenda, you're not credible.

[Randal]

But when you are using these basic insights to try and implement the progressive agenda, you’re not credible.

What the fuck? Is that a joke? I've never heard anyone more clearly admit that originalism is an outcome-oriented project for conservatives.

[M L]

The progressive agenda re: guns, I mean, which is to ban guns, and otherwise ensure that Americans are unable to defend themselves and their families. They could amend the Constitution to achieve this, that's fair game constitutionally speaking.

[Randal]

If that's the correct, originalist meaning, then it wins, right?

Anyway, if you were paying attention, you'd know that I've been arguing that the assault weapons ban is unconstitutional since it interferes with militia effectiveness. That's hardly a progressive position.

[Randal]

ackshully living constitutionalism isn’t even a thing

Your original "question" was about the leftist contents of this comment thread. Nobody here invoked living constitutionalism (except other right-wingers throwing it out as a strawman).

Maybe there are still pockets of LC devotees out there, who knows. Probably are. I don't hear much about it myself.

Which makes sense. The left got burned by Dobbs, and we know why. I don't think people are eager to make the same mistake again.

[M L]

I admit the comments are a mite better than expected.

But "originalism" is fairly defined as the proposition that the meaning of the Constitution is fixed and doesn't change until it is properly changed by the amendment process. The alternative to that is living constitutionalism. I guess "we're all originalists now" and LC zebras changed their stripes. Or they are just pretending.

[Brett Bellmore]

Living constitutionalists who don't want to own up to it use the dodge of pretending, "It always meant this, people just didn't notice." as a way of getting around fixity.

[Sarcastr0]

Brett, you are literally describing your own arguments here.

[Brett Bellmore]

You won't see me do the "people just didn't notice" bit; Generally I'm pointing out that they not only noticed, but were quite vociferous about it.

[Randal]

"It always meant this, people just didn't notice" is a different argument than the one living constitutionalists make. It's perhaps not a very good argument usually, but it has worked before, like in Brown.

[Stephen Lathrop]

I don’t see anyone arguing that the words don’t have a fixed meaning.

I am arguing that the words don't have a fixed meaning. And typically cannot have one.

Every text ever created has meaning inflected by the context of its creation. Over time, that context is as changeable as the view through a kaleidoscope. While the original context of the text's creation becomes lost to memory—like a kaleidoscopic view erased by successive rotations—the words in the text never change.

That means that by default the words in a historical text which survives to a later present are inevitably read and inflected in the context of the later present. They cannot then be read with their original meaning, derived as it was from original context. That context has been long-since forgotten.

So present context gets applied in its stead, and despite the unchanging words, the meaning of the text changes accordingly. There is no reason to suppose such changes are limited to trivial ones.

A troublesome aspect of that process is that it almost always goes unnoticed. Present-minded context gets applied in a meaning-transformative way during the course of activity which the people doing it are pleased to style as, "analysis." A conspicuous cautionary example of that process in action is to be found in the present vogue for what is called, "corpus linguistics." The words analyzed are the enduring original words. The analysis applied is inescapably present-minded.

To anticipate a common objection, not every meaning contained in every text is equally susceptible to transformation over time. Trivially, but remarkably and illustratively, although few spoken languages remain readily recognizable after the passage of more than a few centuries, alphabets used to record them have often remained astoundingly stable. Not for nothing is a commonplace font used today designated by the name, "Times Roman." An ancient Roman could read at least the capitals without pause. A moderately bright ancient reader would even decode the few letter substitutions without difficulty.

Similarly, and less trivially, mathematical denotations tend to survive unchanged far longer than do contextually inflected textual meanings. Thus, a centuries-old text which prescribes an age required to hold office wins ready—and almost completely deserved—acceptance as reliable. But note, that reliability comes from the mathematical part, not the textual part—as recent controversies over the meaning of the term "officer," bear witness.

Also, it takes infrequently-present levels of abstraction to assure such reliable outcomes from mathematically-related texts. Mere mathematical calculation does not by itself challenge proper interpretation of a centuries-old accounts book, but insight into what the quantities in the book mean can require often-laborious and contested analysis of contemporary economic context.

Thus, citations to occasional unambiguous meanings denoted mathematically do not critique the principle that textual meanings generally cannot be taken as stable over long intervals of time.

[Randal]

... In the Second Amendment context, those of us on the left are arguing for a return to the original text, which Scalia and Thomas have moved us away from.

[M L]

Even if the 2nd amendment did not exist, Congress has no power to infringe the right to keep and bear arms to begin with. Regardless, it's clear that the 2nd amendment enumerates an individual right. Though you might argue that it was not to be incorporated against state regulations.

[JasonT20]

Even if the 2nd amendment did not exist, Congress has no power to infringe the right to keep and bear arms to begin with.

Congress has claimed power to regulate the manufacture, sale, transport, and possession of any number of items considered dangerous under its power in the Commerce Clause, if nothing else. I don't think there is much of any debate in the Courts about that.

[Brett Bellmore]

The problem there is that they've stretched the Interstate Commerce Clause to the point of all but transforming it into a general power to regulate everything, whether commerce or not. To the point where they purport to regulate mere possession of items which have never crossed between states, on the theory that they hypothetically could.

It's like charging somebody with bank robbery because they might hypothetically decide to rob a bank.

[JasonT20]

It’s like charging somebody with bank robbery because they might hypothetically decide to rob a bank.

Not really. Criminal prosecution has far more serious consequences than fines for possessing an illegal weed killer. And possession of some items is clear evidence of intent to act, not to hypothetically act.

I do agree that the Commerce Clause is stretched too far in too many instances, though I suspect we'd disagree about which instances those are in many cases.

(Possessing an illegal weed killer, for instance, would be pointless unless someone would use it, and fining them after they spread it on their lawn wouldn't undo the potential damage to the environment that might justify that regulation in the first place. And environmental issues don't respect state lines, so very few environmental problems would be intrastate problems.)

[Brett Bellmore]

"Not really. Criminal prosecution has far more serious consequences than fines for possessing an illegal weed killer. And possession of some items is clear evidence of intent to act, not to hypothetically act."

And violating federal gun laws carries those same more serious consequences. Look at the people who were threatened with felony raps if they hadn't destroyed perfectly legal bump stocks, just because of a bullshit agency 'reinterpretation'.

[gallinalg85]

And look at the number of felon in possession cases that are neve prosecuted or pleaded down. Gun laws are meant to take guns from law abiding whites. Not from 85 IQ violent blacks.

[Randal]

He's on your side guys. This is part of your credibility problem. 🙂

[Brett Bellmore]

I'm not so sure he's on our side, or a guy on your side who finds doing this fun. But, are you under the impression that your side lacks for monsters?

[Randal]

Yes. Please point out the vile left-wing comments.

[gallinalg85]

Do you deny that the average IQ is 85?

[Sarcastr0]

A telling switch between Randal bing in ought land and you and ML being much less clear.

Quit conflating what you think the law ought to be with what the law is. We live in a society and your authority is not more just because you're super duper sure.

Yes, it gives you additional rhetorical authority. At the cost of switching your thesis back and forth like you're hiding something.

The law does not operate as you say it does, and has not for a century, if not longer.

Pretending we're in an alternate universe is not very good for a meeting of the minds.

[Stephen Lathrop]

To the point where they purport to regulate mere possession of items which have never crossed between states, on the theory that they hypothetically could.

I don't think that is a useful inflection of the principle relied upon. A better reading might be that if the power to regulate interstate commerce legitimately extends to regulating the entire quantity of a commodity available for sale within the nation, then that power legitimately extends to fractions of that whole quantity wherever they are found.

[Brett Bellmore]

Yeah, and your first condition fails, because the clause explicitly limits the reach of the power, rendering any interpretation which obliviates that limit invalid.

[Stephen Lathrop]

Bellmore, could be, but it is not self evident to me that interstate commerce issues are related exclusively to shipments—and that certainly was not Franklin's context when he characterized New Jersey as, "A keg tapped at both ends." Also, you just knocked out most of federal agricultural policy.

[Brett Bellmore]

I'm not particularly troubled about knocking out policies that are hangovers from the nation's dalliance with central planning under FDR.

I'm sure you're aware that the interstate commerce clause was not interpreted remotely this broadly until FDR intimidated the Court with his Court packing threats. It's a product of the Court being extorted into granting the federal government powers it was never granted by the Constitution.

[M L]

"I don’t think there is much of any debate in the Courts about that."

There are many things that are contrary to the original meaning of the Constitution, but on which there is not much of any debate in the Courts.

The original meaning of the Constitution has almost nothing to do with 99.99% of anything that is argued in the Courts, save for the occasional forays and misadventures that get talked about on blogs like this for years on end.

In fact, one might wonder what this magical piece of parchment really has to do with anything. One may be forgiven for considering whether the entire edifice of modern Constitutional law is just an impressive outworking of the social phenomenon of propaganda, an intellectual jungle gym of silly exercises in pretense.

[Randal]

Regardless, it’s clear that the 2nd amendment enumerates an individual right.

I agree, that is clear. It's also clear that the purpose of said individual right is to effectuate militias. It has nothing to do with personal self-defense or hunting.

[M L]

So you have an individual right to keep and bear arms, which includes using them for typical uses like self-defense, hunting, etc. And the purpose of that right is to effectuate militias, and to further the security of a free state. Ok.

First, setting aside your misconception of this purpose, the purpose of a right doesn't mean the exercise of the right is limited to the narrow instance where the purpose is being specifically achieved. If the purpose of freedom of speech is to facilitate valuable speech and expression and the discovery of truth, that doesn't mean it doesn't protect worthless speech, bad ideas and falsehoods.

Second, the "militia" simply meant all able bodied men of fighting age. "Well regulated" simply meant capable and well practiced. So this statement of purpose that you are obsessed with is simply saying that in a free society, it is a valuable and good thing for as many people as possible to be well trained and capable in the responsible use of arms, and to keep and bear those arms regularly. This is why some private schools are bringing back the school gun clubs and shooting teams. 🙂 It makes sense to say that this is necessary to the "security of a free state." It is a powerful check against and disincentive to (1) foreign adversaries who might try to occupy the land and subjugate its people, (2) domestic authorities who might veer toward tyranny, as well as (3) just regular criminals who might like to maraud about the countryside.

[M L]

And again, even if the 2nd amendment did not exist, Congress was never delegated any power to infringe on the right to keep and bear arms anyway.

[Mike Hansberry]

the purpose of said individual right is to effectuate militias

Don't you mean that the rationale given in the second amendment for the non-infringement of the right of the people to keep and bear arms is the continuance of a well -regulated militia necessary to the security of a free state?

Nowhere does the amendment define the purpose of the individual right. The amendment does not claim to create the right or to modify the right which was already in existence.

[Randal]

If the purpose of freedom of speech is to facilitate valuable speech and expression and the discovery of truth, that doesn’t mean it doesn’t protect worthless speech, bad ideas and falsehoods.

What are you talking about? It sure does mean that. Defamation isn't protected due to being false, inappropriate obscenity isn't protected due to being worthless, etc. The lack of protection in those categories of speech exists exactly because they don't advance the purpose of freedom of speech.

I agree with all you said about militias. But Heller and Bruen come out the other way in this world. None of the activities at issue in those cases are useful to a well-regulated militia. Prohibiting them would have no impact on the thing the amendment was meant to achieve.

So you have an individual right to keep and bear arms, which includes using them for typical uses like self-defense, hunting, etc.

No it doesn't. It's not a right to keep, bear, hunt with, and defend oneself with arms.

[Randal]

And again, even if the 2nd amendment did not exist, Congress was never delegated any power to infringe on the right to keep and bear arms anyway.

Who cares? Gun control is primarily state and local. I'm fine if Congress is precluded from legislating on the topic for other reasons.

[M L]

“What are you talking about? It sure does mean that.”

Freedom of speech doesn’t protect things that are false? *mindblown.gif* It does, of course. For example it protects your comment here, which is false. It also protects things that are worthless, of no value etc, which is a highly subjective and arguably totally subjective inquiry. In fact approximately 99.999999999999999999999999999999999999999999% of falsehoods and worthless expressions are protected.

Now if you use provably false speech to harm someone in a tangible way, that can be illegal. Just like if you use your firearm to hurt someone. Duuuhhhhh.

So no, the exercise of a right is not limited to the narrow instances where the purposes of the right are being successfully achieved. The right includes a massive, sweeping category of activity of which only some tiny fraction may be specifically useful. Someone quoted above from Nunn v. GA which states it pretty well: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”

Also, the utilitarian approach of your “purpose” analysis here is fundamentally flawed because the point of rights is not solely to achieve a utilitarian purpose. Rather the point is just to allow freedom. Including the freedom to NOT cooperate with broad societal utilitarian aims (the value of which is subjective, anyway).

Finally, the right to keep and bear arms would seem to include the most typical uses of firearms, such as hunting, self-defense, and target shooting. I don’t know why it wouldn’t. That’s like saying you have the right to own a printing press but not necessarily to use it. This is true even if those things didn’t contribute to the “purposes” of a well-regulated militia and the security of a free state.

But they do. The regular use of, and practice and training in firearms contributes to the ability to have a well-regulated militia and to the _security_ of a _free state_. When it comes to self-defense or defense of others, that is literally the definition of security. If you have roving marauders robbing and killing people, or even some bad domestic authorities, that is a threat to security. The idea is that in free state, there is ample self-reliance and ability to defend among communities.

[Randal]

M L, that’s a pretty content free-post. Your point apparently is… sure, rights don’t extend into obviously illegal stuff (defamation, murder) and obviously include some tangential stuff like hunting, obviously, but obviously not other stuff like machine guns.

So, you’re not so much an originalist as an obviousist. Whatever you think is obvious, that’s what the Constitution means. No principles required. Must be nice!

[M L]

So you think the government can ban speech that is false? You don't actually think that, you're just trolling now or being obtuse. I didn't use the word "obvious" even one time. But it should be OK to use in this context. Here's a post from EV on lies, which is a much narrower category of things that are false: https://reason.com/volokh/2022/07/19/when-are-lies-constitutionally-protected-unpunishable-lies/

Defamation is not protected free speech, primarily because it harms someone else. Just like using firearms in a way that harms someone else is not protected by the 2nd amendment. Can you explain why you think this is not a good analogy or explanation of the principles at work here?

[Randal]

Of course I can. If the principle is "harms someone else," tons of protected speech would fall. Mean speech. Annoying speech. Boring speech.

That's clearly not the principle. You haven't thought about this at all, have you.

[M L]

Except harm means actual damages to reputation, etc.

So you think the government can ban speech that is false? You don’t actually think that, you’re just trolling now or being obtuse.

[Randal]

I think defamation is only illegal because it's false. If I reveal some true secret about you, even if it causes actual damages to your reputation, it's not illegal. That's because of the purpose of the right.

So once again, your principle of "actual damages to reputation" is blown up. It would make "true defamation" illegal, but "inappropriate obscenity" legal.

You need to retreat and regroup from this conversation.

[M L]

Falsity is an element of defamation, and so is harm/damages. This isn't hard. More importantly, the vast majority of speech that is false or inaccurate is very much protected by the first amendment, as you well know. Spend a little time on social media, or at the local coffee shop or bar, and one might even conclude that in the sum total of all speech that is uttered, most of it is wrong to some degree or another! But your trolling grows tedious.

[Randal]

Did I ever say all falsehoods were unprotected? No. You made that up as a strawman and have been fighting it ever since, in order to avoid engaging.

You still have identified no principle other than obviousness or “that’s just the way it is” for what makes some speech prohibitions ok (e.g. defamation) but not others.

[dwshelf]

If Barnett would like to make a case than any of this matters, he needs to first establish:

1. A modern SC case where what the constitution says (originalism?) has trumped ideology.

2. Failing that, a modern case where tradition has trumped ideology.

[EscherEnigma]

This.

A justice's political leanings is more predictive of how they'll vote then their commitment to "originalism".

So long as that is true, "originalism" is window-dressing.

[JasonT20]

Furthering my comments to Mike Hansberry:

Do you support the interpretation offered by Aymette v TN? Would you rather that every citizen has the right to keep the ordinary military equipment including full auto rifles with restrictions only on how and when they may be carried?

Aymette v State [Tennessee] (1840) was a case in the Tennessee Supreme Court regarding the right guaranteed by the state constitution. It should be noted that the Tennessee constitution of 1834 stated, "...the free white men of this State, have a right to keep and bear arms for their common defence."

"The words 'bear arms' ... have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment."

That decision explores the right and its rationale pretty much entirely in the context of securing the common defense as being against a tyrannical government. That is why you are correct in that the case reasoned that "arms" were those useful and used in "civilized warfare".

The case at issue was a man convicted of carrying a Bowie knife concealed under his clothes. The court upheld the law against that explaining that carrying concealed weapons was not beyond the powers of the legislature because weapons that could be concealed were not useful in the common defense against the standing army of a tyrannical government.

If the 2nd Amendment to the U.S. Constitution has the same rationale, then yes, it seems that the right would include the use of whatever weapons ordinary soldiers can carry in today's armies. But, that would only be for the "common defense" and deterrent against tyranny, not for individual self-defense, hunting, or other sport. So, maybe the militia groups that believe that the government is already tyrannical and that is why they need to arm themselves and train to resist have a right to do that. And, they should be able to stockpile modern fully automatic rifles, grenade launchers, and the like.

Or, to be a bit more rational about things, we can take a look at that concept a little more closely. Let's start with a question.

Was fighting a revolutionary war against the British monarchy the first thing that American colonists did in response to their grievances? No, the Revolution didn't become a shooting war until after more than ten years of resistance and increasing agitation against British rule and taxation. During that time, colonists opposed to the British parliament's acts used their speech, their presses, and their assemblies to protest. Though these protests were certainly not always peaceful, they did not rise to the level of armed resistance until the Battles of Lexington and Concord in 1775. A declared state of war did not exist yet, with that not coming until after Thomas Paine's Common Sense put a war of independence on the agenda and the Declaration of Independence formalizing it the following year.

It is very clear that armed resistance to tyranny is only practically justified (and arguably morally justified) after peaceful, or at least less violent, efforts have failed. Diligently protecting our other rights, Freedom of Speech, the Press, Assembly, the right to vote, and most of all, our right to Due Process, will do far more to stave off tyranny than any number or manner of guns ever could.

[dwshelf]

Diligently protecting our other rights, Freedom of Speech, the Press, Assembly, the right to vote, and most of all, our right to Due Process, will do far more to stave off tyranny than any number or manner of guns ever could.

How well has that worked when it was really needed? Basically, not at all. No guns = no defense of any kind of rights at all.

Exceptions are all based on some external savior. Like 1945, said saviors are often very very late, even if they come at all.

[JasonT20]

How well has that worked when it was really needed? Basically, not at all. No guns = no defense of any kind of rights at all.

I think you must be defining "when it was really needed" as being a state of government that is fast approaching tyranny if not already there. Particularly, with your reference to 1945, the case of Nazi Germany. This is what you don't seem to understand about what I am saying.

When it is really needed is always. Diligence is the price of liberty. Keeping these rights secure is necessary to prevent the government from ever getting to a point where guns would be necessary instead. All of the Western countries, including ours, that have maintained at least relatively free societies since 1945 without their citizens having to resort to armed resistance are examples of when it has worked when it was really needed. And ours is virtually the only one of those where such a high percentage of the citizenry owns guns.

[Brett Bellmore]

But the key point here is that, just as you can't go buy a fire extinguisher after your home catches fire, you can't get the guns after you need them. As you're approaching needing them, they get increasingly hard to get, because the first thing a government that's even starting to trend tyrannical does is try to disarm the public.

So it's silly to say that people shouldn't get guns to fight the government when voting still seems to work. That's the only time you CAN get them! (Legally and easily, anyway.)

[Stephen Lathrop]

But the key point here is that, just as you can’t go buy a fire extinguisher after your home catches fire, you can’t get the guns after you need them.

Sure you can. You get your guns from other nations which oppose whoever you are fighting. It’s how most of the insurgencies in the last 100 years have been fought. It was a big part of the way the American Revolution was fought.

The notion to pile up massive private arsenals against hypothetical happenstance is close to depravity. It isn’t even that sensible for nation states, although the scale of their needs justifies it a bit better than for civilians. Insurgencies scale readily to match the ebbs and flows of available hardware. National military emergencies are less convenient to schedule.

[JasonT20]

But the key point here is that, just as you can’t go buy a fire extinguisher after your home catches fire, you can’t get the guns after you need them.

If people owning firearms had the same scale of risk as people owning fire extinguishers, then you might have a point. Now imagine statistics showing that having a fire extinguisher in your home increased the risk of suicide substantially, or fatalities from domestic violence or accidents involving the fire extinguisher. Add in statistics showing how many people that own fire extinguishers end up using them to harm others, and that people not legally permitted to own fire extinguishers end up obtaining them anyway since there are so many already among the population.

Wouldn't you think it wise to evaluate the risks that would come with so many people in the population having fire extinguishers versus the risk of fire where having one might be useful to prevent loss of life or property?

I've never seen any statistics on how often someone uses a fire extinguisher to prevent a fire from getting to the point where only a firefighting team with heavy equipment could handle it. But I don't need to. Fire extinguishers are not dangerous enough to warrant considering any of that. Even a very small chance that one would be useful in my home is sufficient reason to keep one, because there is truly negligible risk in doing so. The same thing certainly cannot be said of firearms.

[dwshelf]

When it is really needed is always. Diligence is the price of liberty. Keeping these rights secure is necessary to prevent the government from ever getting to a point where guns would be necessary instead.

Well sure. So long as no one votes for a tyrant, a tyrant will never be elected.

The problem being that tyrants can be voted in, and things can go south in a hurry. And when they go south, the Supreme Court and the legislature join right in. "Rights" turn out to be flimsy paper. South and Central America have several examples to understand.

Things go south way slower when the population is armed. Seriously, can you imagine rounding up Americans and loading them onto railroad cars? Seriously? You don't need a full automatic, but an ordinary AR-15 in many homes makes it really difficult for the police to just haul off a neighborhood of undesirables.

[JasonT20]

How do you prevent a would-be tyrant that did manage to get elected from abusing power? Do you rise up in arms to take that person out? That gets back to my main point. You wouldn’t do that until it became the last option, given that such an armed resistance would involve such large loss of life on all sides.

You first make it less likely that a would-be tyrant could get elected. You do that by enabling a free press to find and disseminate information about that candidate to the voters that would show his or her nature. You do that by enabling all people, voters or not, to openly discuss the merits and dangers of that candidate. You do that by being sure that the laws that determine who is eligible to vote do not favor particular candidates or some groups of voters over others. You do that ensuring that everyone eligible to vote is able to do so and have their vote count. All of that is useful if someone like that does get elected as well. Their nature could be uncovered while they were in office so that voters could realize their mistake and vote them out.

And to make sure that all of that is secure, you ensure that government cannot violate those rights without accountability. That is where due process comes in. Our due process rights are mentioned twice in two different amendments. The clause in the 14th Amendment only emphasizes that states cannot violate this right rather than it just being a limitation on the federal government. Really, that should have not been necessary, as the 5th Amendment doesn’t start with “Congress shall make no law…” the way that some others do. But, just to make it absolutely clear how important it is, they went ahead and said it again after the Civil War.

All of your argument comes down to an assumption that all of that is going to fail and guns will then be necessary. Or, that having guns available as an “in case of tyranny, break glass” option. But as I said in my reply to Brett, people aren’t just using the guns that way. If they stayed locked behind that glass except for maintenance and training for the common defense, then we wouldn’t be having this conversation. They wouldn’t pose a danger to innocent people when they weren’t needed to fight tyranny.

[dwshelf]

How do you prevent a would-be tyrant that did manage to get elected from abusing power? Do you rise up in arms to take that person out?

In the end, as you suggest, that's exactly what you do.

However, having millions of people armed in their own house with an AR-15 is a major deterrent to the enemies of a state being hauled off.

[Mike Hansberry]

"So, maybe the militia groups..."

Maybe? C'mom man! Why hedge? Either you agree with Aymette or not. Does every citizen in your view have the right to keep the ordinary military equipment?

It must be remembered that Aymette was one of the most narrow early state decisions, which is why the government cited it in MIller. There were no counter arguments as the defense was not present.

A later TN court found for much broader right, including the right to keep and use arms in self-defense, which was in line with the general view of the right to keep and bear arms that prevailed among the early state courts.

What is odd is that the anti-gun crowd ignores the broad individual rights interpretations supplied by Bliss v KY and Nunn v GA, and will not even support narrow early decisions, but instead insists on an interpretation (that limits the right to service in the militia) which did not get a majority in any of the early state courts.

[Stephen Lathrop]

Does every citizen in your view have the right to keep the ordinary military equipment?

Sure, but under the military-style discipline and control denoted by the 18th century meaning in that context of the term, "well-regulated." Note that the object of regulation is the militia itself. That means military-style discipline. I get that it does not mean within the U.S. military chain of command.

[Brett Bellmore]

That's a position which was specifically rejected in crafting the 2nd amendment, because it would have allowed the amendment to be mooted by the simple expedient of just not having a militia. It also makes a hash of the whole concept of a "right".

It's basically Stevens' silly dissent in Heller: That it was a right of the people to be armed when and how the government ordered them to be armed. And not otherwise. ("And not otherwise" always being the point, in the end.)

[Randal]

No! You (and Tom) keep playing this fallacious card. The militia means "everybody." There's no such thing as "not having a militia" other than by not having a population.

But it can be regulated to hell and back.

[Mike Hansberry]

The population can be regulated to hell and back? That is an odd view of a provision of the bill of rights.

[Randal]

It is the only one that talks about being "well-regulated," so perhaps that's the difference.

[Mike Hansberry]

So a provision of the BOR is converted from protecting a right into a provision that allows the government to regulate the population to hell and back?

When those late 18th century folks spoke of a well-regulated clock, do you imagine they mean a clock in good working order or one that has been regulated to hell and back?

[Randal]

As opposed to a clock where all the individual gears are making their own decisions on how and when to turn? Of course.

[Mike Hansberry]

Good luck regulating those gears to hell and back. That make 'em get in line!

[Randal]

Are you trying to argue that "well-regulated" is an upper bound? As in, the militia may be well-regulated, but no more. Certainly not amazingly-regulated or supremely-regulated! Just merely well-regulated or less.

That's... new.

[Mike Hansberry]

Really Randal?

The prefatory phrase is a general proposition, it is not in any way a grant of power to regulate. The words “well-regulated” are descriptive, not prescriptive. They do not compel or authorize either the state or federal governments to regulate the militia to any degree.

What gives you the idea that a provision of the BOR ought to be read to compel, or even authorize, the government to regulate the people to hell and back?

[Randal]

A well-regulated Militia, being necessary to the security of a free State, the Militia shall not be regulated.

That would be odd!

[Mike Hansberry]

Yes, odd indeed. It might even be odder than your suggestion that 2A authorizes the government to regulate the people to hell and back. Thank the Lord the drafters of 2A were not so odd.

[EscherEnigma]

I see y'all want to talk about the 2nd amendment a lot.

Here's the problem though: it doesn't matter. You can argue whatever legalesse you want, but at the end of the day, these second amendment cases are strictly about personal firearms. Guns and rifles.

Machine guns? Anti-tank missiles? Grenade launchers? SAM Batteries? Reaper Drones? F/A-18s? There is no question, in current American law, that the federal government can regulate the ownership of all those military toys. And not even the NRA has an interest in contesting them.

And so as long as the tools of war are not protected by the 2nd Amendment, we are only talking about small personal firearms. And 3D printing has basically made that moot.

Gun control, meaning small arms, has failed. Laws around such may stagger on, but they'll never be enough.

Artillery control, meaning the tools of war that are actually necessary to stand-up to the combined might of the US Military in case of tyranny? Everyone is on-board with those.

So sorry boys, the 2nd Amendment is moot. It's actual meaning has failed (even among self-described "originalists") and the subverted meaning is irrelevant.

[M L]

So much cluelessness.

[EscherEnigma]

I don't deny I'm clueless on many things.

On this though? Nah. By reducing the 2nd amendment to small arms, it's been made small enough to be mooted by technological advances.

[Brett Bellmore]

No, that's actually pretty clueless.

Look, how exactly to you imagine a fight between the government and its own population going down, anyway?

Fighter jets, artillery, high altitude bombing, they're all great if you're just planning on taking down somebody else's country, and don't care if they have a functional economy, or hate your guts, afterwards.

Conventional war was pretty effective during the Civil war, too, when most areas of the country were largely self-sufficient in vital necessities. Sherman could march to the sea, and the North wouldn't starve.

But turning a conventional military against your own country in the modern era is like shooting yourself in the heart to get your torso to stop rebelling. You destroy your tax base. You destroy the starting point for your logistics chain. Suddenly everybody who works for the government has to hide in their houses or risk being potted by, yes, small arms. Power lines start getting taken out, along with rail tracks. Your cities have food riots.

And those soldiers you count on aren't too happy about being told to kill their own kin.

Biden was utterly clueless with his AK-47 vs fighter aircraft remark. That's not how a CIVIL war goes down, in the modern era. Northern Ireland is more like it, and that was low intensity, and the British had the advantage of being located elsewhere.

[Brett Bellmore]

" And not even the NRA has an interest in contesting them."

Not "even" the NRA? Man, you have no clue where the NRA stands on the spectrum of pro-gun groups. They are about the least aggressive, most open to gun control "pro gun" group out there, aside from the occasional fake pro-gun group the gun controllers throw together for an election cycle.

If it were just down to the NRA, we'd have practically no 2nd amendment rights at all.

[EscherEnigma]

Dude, you still think 2006 came after 2015, and you want to lecture me?

But hey, prove me wrong on my actual point. What national-impact pro-gun group is arguing against artillery control?

[Brett Bellmore]

You started out with machine guns, remember? Yeah, there are national pro-gun groups trying to get machine guns relegalized, have been ever since the NRA threw machine gun owners under the bus back in 84.

But, mainly, "even" the NRA suggests that the NRA is particularly principled, when they're actually the least principled real pro-gun group out there. The only significant groups less principled are anti-gun astroturf like "Gun Owners for Safety".

[gallinalg85]

Machine guns don't belong in the same category as the rest of those. Those are ordnance, not arms.

[Stephen Lathrop]

Escher, can you point to any durable firearm manufactured by 3D printing, even as a prototype? By durable, I propose some lesser standard than customary machining and heat treating enables, but more than a few hundred shots before the whole thing blows up.

[Brett Bellmore]

Stephen, you are aware, aren't you, that 3d printing hasn't been limited to plastics for some time now? Right? Direct metal laser sintering can and does produce durable working firearms, it's just a little pricey for the consumer market yet.

Anyway, as lower housings are legally "firearms" for regulatory purposes, and 3d printed plastic lower housings work just fine,
here you go.

You're a bit behind the times when it comes to technology, aren't you...

[Stephen Lathrop]

Bellmore, get back to me when 3D printer folks are cranking out steering linkage parts made of sintered metal.

What a buffoon. You gloat and sneer, while you put up a link which embarrasses your argument. Here is the best gun durability claim from your link:

I could have downloaded a modified design for an AR-15 lower that would have fired 5.56 military rounds more reliably than the lower I printed. These modified designs have been used to fire up to 80 military round before failing. Remember, I chose a lower caliber (.22LR) upper to increase reliability and to make it more compliant with other states’ laws. I could have easily chosen a .223 or 5.56 upper (although it might have generated enough recoil to crack the plastic lower); I wasn’t interested in putting my personal safety at risk to make a point!

[Absaroka]

Generally speaking, you design for the material. With AR lowers, the only stressed part is the place that turns up at the rear, where the buffer tube threads in. If you want an all-polymer one you can just make the buffer tube integral like this.

In fact, the original AR is designed for an aluminum alloy called 7075. Manufacturers on the budget end of the market sometimes use a weaker, cheaper, alloy like 6061, and compensate by just making that buffer tube tower a little thicker.

If you want to 3D print one and use a conventional (non-integral) buffer tube, you can...

[Absaroka]

…add reinforcements – this one has the obvious cross bolt, and if you look closely, also uses a U-bolt. You can search for ‘U-Bolt Vanguard AR-15’ to find other pics. I think there is a newer ‘UBAR2’ as well.

As far as durability…

[Absaroka]

...see this page:

"This AR lower tested up to 2000 rounds of 5.56 ammunition and showed no signs of structural integrity loss."

Having said all that, I think generally speaking it's easier to just make them out of metal.

[Absaroka]

"In tests performed by ARES, an FGC-9 with a craft-produced, ECM-rifled barrel exhibited impressive accuracy: the firearm shot groups of 60 mm at 23 meters, with no signs of tumbling or unstable flight. Further, in forensic tests with FCG-9 models seized in Europe, the guns generally exhibited good durability. One example, described as not being particularly well built, was able to fire more than 2,000 rounds without a catastrophic failure—albeit with deteriorating accuracy."

Armament Research Services

[gallinalg85]

Half of the people who claim to believe in the Constitution think the 14th Amendment protects the right of a gay man to bareback another man until completion.

[Randal]

Another conservative more obsessed with gay sex than any gay person I know. Who shows up to comment threads and posts about sex out of nowhere? Sickos do.

[gallinalg85]

If unprotected gay anal sex is such a great, praiseworthy act, what's sick about talking about it?

[MyWag13]

Abortion was legal at the time of the signing
of the US Constitution.

The first law concerning abortion was 1821 in Connecticut.
It protected the woman, NOT the fetus.

Abortion is protected by basic Liberty
and the 9th, 10th and 13th Amendments.

Forced birth is the ultimate involuntary servitude,
which is prohibited by the 13th, with NO Exemptions
for saving fetuses.

[gallinalg85]

If that's the case, making me pay income taxes to pay for Shaniqua's illegitimate 85 IQ future criminals is involuntary servitude as well.

[M L]

Forced death is the ultimate involuntary servitude, actually. But yeah, "forced birth" would be pretty bad as well, assuming conception was forced, usually it's not though.

[Randal]

Why does it matter if conception was forced?

Oh yeah, blame dem hos! That's why.

[M L]

Arguably, it should matter because as MyWag13's comment implies, involuntary servitude is morally abhorrent (not to mention unconstitutional). This is as opposed to voluntary servitude.

[Randal]

Forced birth is never voluntary. It’s in the name.

[M L]

Right, but you asked why it should matter whether conception is forced. It's because force is generally considered bad. Taking someone's life is generally considered the worst form of force.

Now the connection between conception and birth, is that every birth is always the result of a conception. You can't have a birth without a conception first.

Next you will argue that even if conception is voluntary or the risk of conception is voluntarily assumed, this does not justify "forced birth."

In response, I would point out that the law generally places an obligation on parents (and others) to provide life sustaining care for the young humans in their care, who cannot survive on their own. Each year, many criminally negligent parents and other caretakers go to prison for failing to use their body to serve these dependent little humans. Often they are drug addicts. It is worth noting, though, that any such burden the law imposes is temporary and can be relieved, since anyone who does not want their child can put them up for adoption, or drop them off at a location pursuant to Safe Haven laws, or other options.

So the question is do you also disagree with those types of laws? Or, do you distinguish these cases from abortion because the human victims in question are born versus unborn, and unborn humans should not have legal rights or protections (i.e. be considered a "person" legally)? If the latter, then it seems that the crux of the issue is not whether people should be "forced" to do things, but whether unborn humans should be treated as "persons" meaning they have any legal rights or protections.

[M L]

As a side note, depending on how you define "birth" - it's not actually avoidable. Even after an abortion, the dead fetus must exit the body. Typically through the birth canal, and potentially with contractions similar to a regular healthy birth, only it's no longer alive.

[JasonT20]

As a side note, depending on how you define “birth” – it’s not actually avoidable. Even after an abortion, the dead fetus must exit the body. Typically through the birth canal, and potentially with contractions similar to a regular healthy birth, only it’s no longer alive.

Contractions? How far along in the pregnancy are you imagining that abortion to happen? I’m not claiming anything resembling medical expertise here, but that seems really unlikely to be accurate.

And yeah, you never answered Randal's question.

[M L]

No expertise here either, my understanding is that in some cases you need to take a drug to help expel the dead fetus and there will be contractions. Presumably not as major as regular birth though.

I think I did answer his question directly, though without a fuller explanation, see below.

[Randal]

You're assiduously avoiding my question.

But yeah, “forced birth” would be pretty bad as well, assuming conception was forced, usually it’s not though.

I can see saying that mothers have a responsibility to their unborn children. I can also see say that they don't. But you're suggesting that their responsibility depends on whether the conception was forced. How does that work? (It's ho-blaming, obviously, I just want you to admit it.)

A parent's responsibility for their actual children's welfare doesn't depend on whether the child's conception or birth was forced.

[M L]

"But you’re suggesting that their responsibility depends on whether the conception was forced. How does that work?"

As I already implied, it's because of the idea that people shouldn't have things forced upon them. Force means there is a lack of consent.

The argument is that when a person did not consent to the risk of conception, they might now be justified in acting out of medical self-defense against the unborn human. I'm not sure this is right, I'm just saying it seems there is a quite plausible argument.

An obvious rejoinder would be that the unborn human is innocent and should not suffer due to the acts of the third party offender. But self-defense doesn't rely on the culpability of the person who is an apparent threat. For example the case of the drunken fool who innocently tries to break into what they believed was their own house or apartment. Or some other hypo where they are tricked into doing so.

[Randal]

The argument is that when a person did not consent to the risk of conception, they might now be justified in acting out of medical self-defense against the unborn human.

No, "medical self-defense" wasn't part of your original statement. It was any forced birth, whether or not there was risk to the mother.

It's fine if you want to retract your urge to slut-shame women, but I'm not going to fall for your rhetorical dodges.

[M L]

I said "forced birth" is bad assuming conception was forced. Otherwise it's not really forced, it's consented to or at least a risk voluntarily assumed.

You can prattle on about your obsession with ho-blame, slut-shame, whatever all you want. Anyone can see it's irrelevant.

[Randal]

I said “forced birth” is bad assuming conception was forced. Otherwise it’s not really forced, it’s consented to or at least a risk voluntarily assumed.

You've perfectly described slut-shaming. This is like saying that cruel and unusual punishment is bad when the crime is involuntary, but anyone who intentionally commits a crime has consented to or at least voluntarily assumed the risk of cruel or unusual punishment. And since essentially all crimes have an element of intent (mens rea), all criminals can fairly be cruelly or unusually punished.

That's just not how rights work. A woman doesn't forfeit her right not to be enslaved whenever she has sex.

[JasonT20]

Women can give up parental rights after delivery, correct? Like so-called safe harbor laws? As far as I can tell, all cases of child neglect presuppose the parent or legal guardian having accepted the responsibility of caring for the child and not having initiated a process of giving up that responsibility to others or the state.

Each year, many criminally negligent parents and other caretakers go to prison for failing to use their body to serve these dependent little humans.

No, no, and no. A caretaker for a baby or child does not "use their body" in anything remotely like being pregnant. That is so far from being reasonable, that I am not going to bother trying to explain why. Just think about it for a few minutes.

There are no analogies that work here. Being pregnant is different than any other responsibility a person could even conceivably be legally held to. Thought experiments and analogies can be a starting place to get one thinking, but they cannot come close enough to the risks and burdens of pregnancy to use them to draw conclusions.

[M L]

I agree it is different, but I'm not sure it is relevantly so. People have to work at a job 60 hours a week to clothe and feed and pay for their children, on top of staying up all night, changing diapers and all the direct care.

Even if it is dramatically different, it still has to be weighed so as to justify the intentional killing of a human being (your own child at that).

[JasonT20]

And no one is forced to be the caretaker of a child, not even the child's parents. That a child needs a caretaker does not mean that it has to be any one specific person. A pregnant woman is the only one capable of sustaining the life of a fetus.

Even if it is dramatically different, it still has to be weighed so as to justify the intentional killing of a human being (your own child at that).

Here, we're getting into a question of language and moral responsibility, aren't we? Is denying aid to someone that would die otherwise the "intentional killing" of that person? If that aid imposes no significant risk to yourself, then I can see imposing a legal responsibility to provide that aid in the moment of immediate need, such as calling 911 when someone is critically injured. But as far as I know, no one person is ever legally required to put themselves at risk to aid someone, nor to be an ongoing caretaker. Biological parents may be required to provide financial support, if they are able to do so, but they don't have to be the one to directly supervise the child, see that it is fed, change diapers, etc.

Taking abortion away as an option for a woman that does not want to be pregnant is imposing a physical burden and risk of serious health consequences, including death, that I just don't see society imposing on anyone else in any other circumstances. And it is all in the service of a belief that is hardly universal. There is no consensus that conception is the start of a person with a right to life equal to that of someone that has been born. Not even close.