Second Amendment Roundup: The Hawai'i Supreme Court Overrules Bruen

Not really, it was only wishful thinking.

On February 7, the Supreme Court of Hawai'i decided State v. Wilson, upholding state criminal laws confining handguns and ammunition to the "possessor's place of business, residence, or sojourn."  A separate provision provides for permits to carry (which historically no one got), but the defendant had not applied for a permit and thus had no standing to challenge that provision.

Article I, § 17 of the Hawai'i Constitution has the same language as the federal Second Amendment, just deleting the first and last comma.  Wilson held that § 17 "supports a collective, militia meaning," and thus "in Hawai'i there is no state constitutional right to carry a firearm in public."

Citing Justice Stevens' dissent in Heller and Justice Breyer's dissent in Bruen, Wilson claims that the U.S. Supreme Court "distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don't fit."  The Court's failings are not limited to the issue at hand – "the Dobbs majority engaged in historical fiction" as well.  Wilson avers: "The United States Supreme Court disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement."

Wilson fails to analyze the actual precedents when it asserts: "Until Heller, the Supreme Court had never ruled that the Second Amendment afforded an individual right to keep and bear arms."  Well, the Court assumed that the right is individual in Scott v. Sandford  (1857), U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Robertson v. Baldwin (1897), U.S. v. Miller (1939), Johnson v. Eisentrager (1950), and U.S. v. Verdugo-Urquidez (1990).

According to Wilson, both § 17 and the Second Amendment "use military-tinged language – 'well regulated militia' and 'bear arms' – to limit the use of deadly weapons to a military purpose."  However, "there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense."  But this ignores that the guarantee has two separate clauses – one declaring the necessity of the militia, the other declaring the right of the people to bear arms.  Wilson implies that the militia are the only "people," as if the guarantee refers to "the right of the militia to bear arms."

The court doesn't bother to compare the usage of "the people" with other parts of the state Bill of Rights, which prohibits abridgment of "the right of the people peaceably to assemble," provides that "the right of the people to privacy … shall not be infringed," and guarantees "the right of the people to be secure … against unreasonable searches, seizures and invasions of privacy…." By contrast, in the very next provision after the arms guarantee, the drafters knew how to distinguish "the people" from "member[s] of the militia" by providing that "no soldier or member of the militia" may be quartered in any house except in certain circumstances.

Quoting Justice Stevens' dissent in Heller, the court stated that "when used unadorned by any additional words, its meaning [i.e., bear arms] is 'to serve as a soldier, do military service, fight.'" But there are additional words – the "right" of "the people" to bear arms.

The court acknowledged that most state constitutions protect individuals because they refer to "persons" and "citizens," but ignores that several also refer to "the people."  Many follow variants of Pennsylvania's 1776 Constitution by stating that "the people have a right to bear arms for the defence of themselves and the state." But, says Wilson, § 17 doesn't refer to "defence of themselves."  Right, but it also doesn't refer to "defence of the state."  It generally recognizes the right to bear arms, impliedly for all lawful purposes, just as the U.S. Supreme Court did in the Heller decision.

The fun begins when the court sought to explain the public understanding when the guarantee was adopted in 1950, but leaves out critical parts of that history.  In written testimony to the Hawai'i legislature in 1992 in opposition to a proposed ban on semiautomatic firearms, I had occasion to research the 1950 proceedings.  The legislature ended up banning only what it called "assault pistols" defined by certain generic features.  Below are some of the critical items that Wilson left out.

Wilson does not mention the manual prepared by the Legislative Reference Bureau and distributed to all members of the 1950 constitutional convention, which stated: "The rights of persons may be considered under two categories – the rights of persons in normal course of living (civil rights), and rights of persons accused of crime.  Under the first category may be included the freedom of speech and press, of assembly, of conscience (religion), and the right to bear arms."  Manual on State Constitutional Provisions Prepared for the Constitutional Convention, Territory of Hawaii 345 (1950).

Wilson quotes a committee report stating that the guarantee "incorporates the 2nd Amendment" but "should not be construed as to prevent the state legislature from passing legislation imposing reasonable restrictions upon the right of the people to keep and bear arms." Stand. Comm. Rep. No. 20.

But Wilson neglects that Delegate Jack H. Mizuha, Chairman of the Committee on Bill of Rights, read those very words when bringing the provision before the convention and explained that the term "the people" "applies to all persons here in the territory."  Delegate Phillips asked, "To each individual or to them as a group? … Well, you say … 'the militia,' and then … after the comma, 'the right of the people to keep and bear arms.'  Do you mean there the right of the individual or the right of the – …."  Mizuha replied, "All individuals. … Individual rights, the Constitution is for individuals."  2 Proceedings of the Constitutional Convention of Hawaii, 1950, at 11-12 (1961).

Mizuha also noted that the Committee heard from representatives of rifle clubs and gun clubs, who obviously supported the guarantee to support their rights, as well as police and prosecutors, who wished to keep current restrictions.  If the guarantee was thought to protect the "right" of the National Guard to bear arms, why weren't Guard spokespersons testifying in its favor?

In further debates, reference was made to the restrictions on machine guns in the National Firearms Act.  The delegates were assured that the arms guarantee would not prevent banning such weapons.  But no one suggested that commonly-possessed rifles, shotguns, and handguns could be banned.

Delegate Bryan supported the guarantee because "the law-abiding citizens of this territory are entitled to have firearms for their own protection, for sportsmanship, for target practice and so forth."  Delegate Fukushima had the final word, stating that the guarantee "will protect all the people from [sic] keeping and bearing arms, subject of course to reasonable restrictions."  It was then adopted unanimously by the Committee of the Whole.

Wilson quotes the report of that Committee stating that the guarantee "will not render invalid the existing laws of the Territory … relating to the registration, possession and carrying of firearms," nor would it "prevent other reasonable restrictions on the right to acquire, keep or bear firearms or other weapons," including prohibitions on "the possession of such modern and excessively lethal weapons as machine guns, silencers, bombs, atomic weapons, etc."  Comm. of the Whole Rep. No. 5.

All of these referenced laws applied to the people at large, and so it was relevant to say this only because the guarantee protects individual rights.  None of these listed laws applied to the National Guard, which was equipped with machine guns and bombs.  The state has power to regulate the National Guard unconstrained by the arms guarantee.

The Constitution of 1950 was approved by the voters at the general election that year.  The Territory became a state in 1959.  Revisions to the guarantee were proposed in 1968.  Wilson quotes a report from the Legislative Reference Bureau stating: "The historical background of the Second Amendment indicates that the central concern in the right to bear arms was the right of the states to maintain a militia." 1 Hawai'i Constitutional Convention Studies 7 (1968).  Yet on the very next page, the report referred to "evidence which indicates that the delegates [in 1950] thought that section [17] was guaranteeing an individual right to keep arms."

Wilson further relies on a committee report from 1968 stating: "The right to bear arms refers explicitly to the militia and is subject to lawful regulation."  The actual guarantee, of course, explicitly refers to "the right of the people to … bear arms…."  Wilson also refers to a document from the 1978 convention claiming that the guarantee "referred only to the collective right to bear arms as a member of the state militia…."  But nothing during these later proceedings can change what was actually stated and understood at the 1950 convention.

Wilson also claims that the framers in 1950 were aware of United States v. Miller (1939), in which the Supreme Court supposedly held that "the Second Amendment conferred a collective right to bear arms in service to the militia."  Miller said no such thing, instead holding only that it could not take judicial notice of whether a short-barreled shotgun was ordinary military ordnance.  The Court was not concerned with whether defendant Miller was a member of an organized militia, assuming that the Amendment protects all Americans.  Relatedly, Wilson also endorsed Justice Stevens' dissent in Heller that the prefatory phrase "identifies the preservation of the militia as the Amendment's purpose."  But as the Heller majority held, the Amendment's operative clause protects individual rights.

The Committee on Judiciary of the Hawai'i Senate, in a 1992 report, explained why that logic could not apply to § 17:

Article I, Section 17 created a qualified "individual" right to bear arms.  A "collective right" theory is logically inapplicable in the context of a state constitution. . . .  It is not a right of the counties to maintain militia free of state infringement.  Nor could it logically be to allow the state militia to operate free of state infringement.  Finally, it could not be a state limitation on federal infringements.  By simple process of elimination it must create an individual right to bear arms.  Standing Committee Report No. 1788, Feb. 14, 1992, at 5.

Besides citing a line from an episode of the HBO series The Wire as authority against Bruen's historical-tradition test, the Wilson court relied on a 1990 issue of Parade Magazine in which Chief Justice Warren Burger supposedly said that the individual-rights interpretation is "one of the greatest pieces of fraud … on the American public by special interest groups that I've ever seen in my lifetime." That quote is not to be found in Parade, but Burger did write there that no one questions "that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods …."  Great scholarship.

Wilson ends with a digression on history and tradition in Hawai'i.  It favorably recalled the 1852 Constitution of King Kamehameha III, which "contained no right to keep and bear arms."  That is not surprising, in that the Constitution provided for absolute rule: "The King is sovereign of all the chiefs and of all of the people; the kingdom is his." That recalls the infamous dictum of Louis XIV: "L'état, c'est moi."  Under a weapon law of the same year, Wilson relates, "the only people allowed to carry arms were Kingdom officials and military officers…."

The monarchy was overthrown in 1893 and the Provisional Government set up, which established the Republic of Hawai'i. Wilson relates that, in 1896, the Republic passed a law prohibiting the carrying of a firearm without a license, but does not mention that anyone could obtain a license on the payment of an annual fee of one dollar, without any other qualification.  See Republic of Hawaii v. Clark (Haw. 1897).

Hawaii was a U.S. Territory from 1898 until 1959.  Its carry restrictions only applied to concealed handguns, which required a permit that would be issued if the person had "good reason to fear an injury" or "other proper reason."  We have no idea how strictly such laws were administered.  It was not until 1961 that a permit was also required to carry openly.

For the above history, Wilson relies on the Ninth Circuit's 2021 decision in Young v. Hawai'i, which upheld the state's ban on open carry and which was vacated and remanded by the Supreme Court in light of Bruen.  I have written about Young's faux histoire here.

The post-monarchial history reflects the context in which the guarantee of the right to bear arms in the Constitution of 1950 would have been understood.  As in many American states, open carry was lawful and concealed carry required a permit.  It was not as if, as Wilson depicts, no right of the people to bear arms was recognized.

One last point about the historical context in which the 1950 Constitution was adopted.  That was only five years after the end of World War II, which for the U.S. began with the attack on Pearl Harbor.  When the Hawai'i National Guard was federalized, the Territorial Guard and supportive armed civilian groups stepped up to protect against sabotage and defend against potential invaders.  Many of the delegates at the 1950 convention, like our Founders, doubtlessly considered the militia to consist of the people at large who would take up arms in an emergency.

Wilson ends with an explanation of how "the spirit of Aloha clashes with a federally-mandated lifestyle" of recognizing the right of citizens to carry firearms.  While that was another jab at the U.S. Supreme Court, Wilson found that the defendant lacked standing to raise a Second Amendment defense because he had not applied for a carry permit, a requirement that Bruen recognizes.  The Wilson court could have followed the same logic and found that he lacked standing to challenge § 17 as well, in which case no need would have existed to repeal that guarantee of the state Bill of Rights by judicial fiat.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"Aloha" means both hello and goodbye, so I have heard. I agree, then, that the Hawaii Supreme Court's spirit is similarly double-faced.

[SomeGuy 2]

It is not a right of the counties to maintain militia free of state infringement. Nor could it logically be to allow the state militia to operate free of state infringement. Finally, it could not be a state limitation on federal infringements. By simple process of elimination it must create an individual right to bear arms.

This does appear to be pretty devastating. So under the Court's reading of their version of the amendment, what "right" is protected? The state won't ban people from joining the militia that it created? Pretty pointless thing to put in a constitution, "Congress won't ban you from joining the army, your liberty is saved!" There must be some individual right at work here even if it doesn't apply to the laws in this case. I'd say at minimum there's at least some right to have a gun at home if not in public.

[Davy C]

But the National Guard has standards. Can't join if you're over a certain age, etc. So it's not even "We won't ban you from joining the National Guard", because they very well might. It's reduced to "We will let at least *some* people join the National Guard." That is a ridiculously weak "right" to put in a constitution.

[bookwork83]

A perfect situation to test article 3 of the 14th amend

[Longtobefree]

The National Guard is part of the US Army, NOT a militia in any sense.
One distinguishing feature of a militia is that it must be specifically 'called up', and the members can answer the call with "no'.
Remember the posters in the sixties "suppose they gave a war and no one came?"

[Absaroka]

"...and the members can answer the call with “no’."

ISTR a lot of references to colonial militia service being mandatory. One example:

"By the mid 18th century, militia law of most colonies required that all free males between the ages of sixteen and fifty be enlisted."

Is your view that those accounts are in error, or that participation in training was mandatory, but participation in an actual defensive call-up was optional, or something else?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have no citations, but that jibes with what I remember from history books too. Lots of arguments about what today would be conscientious objectors. Poor males were provided some equipment, but most were expected to provide their own. Central armories for powder were common, but it was still privately-owned powder.

[Brett Bellmore]

As I understand it, participation in militia training was mandatory, but if the militia were actually called up, it was expected that if they were called up for an evil purpose, they'd refuse. The point of making the military the people was that the military would refuse to be sicced on the people!

Not formally expected, because no government that would call up the militia to evil ends would respect such a formal provision anyway, and the founders weren't into pointless commands. Informally. To quote Tench Coxe on the topic:

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

By making the militia the people, you safeguarded the people because the militia would not be willing to be used against itself.

[ReaderY]

In my view, a legitimate 2nd Amendment interpretation should connect the individual right to keep and bear arms to the state right to maintain a militia. I think one consequence of such a connected interpretation would be that a state could make militia service mandatory. It could for example say that our militia is open to all adult members of “the people,” but you can only possess arms if you’re willing to serve in our militia, including things like a couple of weeks initial training, a week or so a year of regular service, and mandatory call-up in an emergency. I think those would be perfectly reasonable militia regulations for a state to have if it wanted to.

[Brett Bellmore]

A state CAN make militia service mandatory. What it can't do is make gun ownership contingent on militia service.

The founders were concerned about keeping it possible to raise a militia in an emergency even if the existing government wanted to make it impossible. Because the government ITSELF might end up being the emergency that demanded a militia!

If the government can demand that you be in the militia to own a gun, it can extinguish the right by doing exactly what the right aims to prevent: Abolishing the militia system.

Why did they safeguard the militia, and ban long term appropriations for an army? Because they figured an army was useful for oppressing the people, while a militia, itself being the people, would refuse such orders.

The whole system is premised on the notion that a government monopoly on military force is a danger.

[Theendoftheleft]

This reminds me of a piece over at Balkinization: https://balkin.blogspot.com/2024/02/liberal-originalism-rest-in-peace.html

In terms of 'liberals' believing in 'legal possibility', the Blue Team cheerleaders have fully onboarded the Crit notion that the law is largely indeterminate. So, it can mean whatever one wants it to mean to yield the result one desires. (Anything can be an 'insurrection' so long as we say it enough times to ourselves, for example.) The fact that there is no necessity for others to agree, including people in judicial office, nevertheless seems to have eluded such folks.

The same thing appears to be the case here in this Hawaiian gun case. (It's pretty clear that 'Aloha' REALLY means instead that infants and the insane are constitutionally required to carry guns....) The constitution can mean whatever you need it to mean, using whatever 'interpretive' norms you see fit.

This is the stuff of a banana republic. It is the stuff of people who wish to crash a system. And yet none of y'all seem to actually respond to this, other than to repeat your own interpretive methods and dogmas to one another.

Shouldn't you instead go on the offensive if you're interested in surviving?

It's not merely that your divided house will not stand. No sub-system which operates thus will stand either--especially as the Blue Team starts to cannibalize its own. A public, heavy cost ought to be imposed upon this judge if the American legal system is to even persist.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This sorry judicial decision is nothing special. There are any number of trials where a murder conviction is overturned 20 years later by DNA evidence, and it come to light that the only evidence support a death sentence was a jail snitch who got a sweetheart deal in exchange.

The entire systems ducks accountability with qualified and absolute immunity. Until those are gone, and corrupt and incompetent police, prosecutors, and judges are thrown in jail and lose their pensions, the judicial system will continue favoring the powerful and corrupt.

[Michael Ejercito]

Can absolute immunity and qualified immunity stop a vigilante?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Can a non-sequitor contribute to a discussion? The giraffe hears yellow.

[Krayt]

Giraffachromethesia

[Kazinski]

Resistance to Bruen “requires a really futile and stupid gesture be done on somebody’s part!”

And the Hawaiian Supreme Court is just the ones to do it.

[Bwaaah]

Being from New York, I don't mind a moment when my state isn't the leader of malicious [non]compliance with 2A rights.

I'm going to take this Hawaii decision as a sideshow of a legacy case from before they began compliance with Bruen. Importantly, the defendant in this case failed to apply for a permit, which is a requirement that is not barred by Bruen.

It looks like Hawaii has been issuing concealed carry permits now (see here), although it's hard to find specific details in the Hawaii AG's 2022 annual report. (Beware: possession of a valid medical marijuana card is the first reason they use to deny a permit [42% of denials].)

This case looks like a beside-the-point sidebar opportunity for some Bruen losers to think out loud. But it's best viewed as noise, and I suspect that will be its effect.

[johndoe111]

Wilson was charged in 2017, before Bruen, and when Hawaii would not issue him a carry permit under any circumstances. Applying for a permit would have been futile. The court here is absolutely incorrect that he would have had to submit a nonexistent application for a nonexistent permit which he had no legal qualification for in order to challenge the law he is being charged with. The fact that due to later developments permits became available is irrelevant.

[Randal]

Well, Bruen is total garbage, so this Hawaii opinion is the sort of thing we're going to get for a while. It's garbage too, but I suppose the theory is that if SCOTUS can make shit up, then making shit up is the law of the land.

[Theendoftheleft]

And that's why you won't have a country in ten years.

What's your exit strategy?

[Bwaaah]

They call them "principles."

Go figure.

[Brett Bellmore]

"Wilson found that the defendant lacked standing to raise a Second Amendment defense because he had not applied for a carry permit, a requirement that Bruen recognizes."

It should certainly be relevant that, at the time, they only theoretically issued those carry permits. Not in reality. The permit system in place wasn't one that was constitutional under McDonald, let alone Bruen.

Since, they've replaced it with a system that at least theoretically is consistent with Supreme court guidance, though probably still not as a practical matter.

[Doug Huffman]

Aloha Hawai’i, good bye. Time to secede. You have sold your birthright beauty to haole tourists and wasted it. Hawai’i is dirty, worn out, tired.

Who will now be your masters, who will supply your SPAM habit?

[Brett Bellmore]

I think it's pretty clear that, if this decision isn't slapped down, and fairly viciously, a number of other circuits will take it as proof that the Court isn't willing to defend the Bruen decision, and they will proceed to totally gut it.

The ball is in your Court, Roberts. What are you going to do?

[Davy C]

Low chance this decision is reviewed. The facts aren't great. Allegedly, the guy didn't try to apply for a permit and lied about how he got the gun. Would be better to review a case where the guy doesn't lie and applied for a permit but was denied for no good reason.

[Brett Bellmore]

Sure, the facts aren't great, that's often the case in important cases.

But, yeah, the guy didn't apply for a permit under a system that wasn't actually issuing any permits. And Hawaii claims he lied about how he got the gun.

The problem is that the ruling itself is a big upraised finger to the Court, and if they don't break that finger they'll embolden the other circuits that don't like Bruen.

[Longtobefree]

Well, zero chance he grows a pair and rules that "shall not be infringed" means what it says.

[Stephen Lathrop]

There is a case to be made that even folks not trained in academic history can research, analyze, and write genuine history. It is rarely done, but it happens.

Arguably, some of the better biographers create works which count as histories. There is some journalism done, typically by participants in historical events, or by direct observers, which is sufficiently researched afterward, and objectively written, to count unambiguously as history.

An outstanding example of the latter is William Shirer, author of the imposing, The Rise and Fall of the Third Reich. Shirer trained and worked as a journalist, not at all as a historian. In the 1930s he was hired to work in England and Europe by Edward Murrow.

Shirer enjoyed the twin advantages of a judicious temperament, and a front-row seat to witness momentous events as they happened. To that he added willingness and ability to do the hard work to gather after-the-fact extensively researched information, to contextualize what he had seen and reported on first-hand.

Perhaps best of all, Shirer enjoyed the advantage of writing about present-time subjects. Those did not feature confounding time-related contextual problems of the sort which create need for specialized academic training to cope with properly.

There can be no doubt that, The Rise and Fall of the Third Reich is a magisterial history. The standard it set for work of that type has rarely been approached by others.

One of those others, however, is Richard Rhodes, author of, The Making of the Atomic Bomb. As his surprisingly challenged childhood suggests, Rhodes must be accounted a natural genius.

If any other work exists to rival, The Making of the Atomic Bomb, for lucid historical presentation of otherwise daunting subject matter, I am unaware of it. I am certain many commenters here will already have read The Making of the Atomic Bomb,.

Rhodes apparently got no historical training. Like Shirer, Rhodes also enjoyed the advantage of subject matter—however complex— which did not challenge interpretative context by adding too much need for metaphorical time travel.

Almost analogously, however, Rhodes did not shrink from challenges to account for far-flung cultural contrasts among his many biographical sketches. Neither turn-of-the-20th century Hungary, nor New Zealand in the same era, nor late-19th century Denmark daunted him in his research. Rhodes mastered an elegant biography of Robert Oppenheimer, which by itself spanned Manhattan, American academia generally, England, California, Eastern Washington State, and New Mexico, all brilliantly sketched by Rhodes without apparent difficulty.

Even the still-more-alien metaphorical terrain of theoretical physics comes to life in Rhodes's account. The descriptions of that subject are so clear that an educated ordinary reader must remain careful to notice he has not learned more than he supposes.

The Making of the Atomic Bomb is an astonishing accomplishment. So great that a conscientious teacher of would-be journalist/historians might almost consider withholding it from students, lest they become over-inspired, but too-much daunted at the same time.

What I have said thus far is that to write history without benefit of professional training apparently takes extraordinary natural talent. Talent so great that it manifests in unique creativity. And even then, it works best if the subject matter considered is more-present-minded than deep-past historical.

Now, in comparison to two giants, consider Halbrook. Is his temperament and talent comparable to theirs? Is his work comparable? Of course not. There is no comparison. Halbrook is a poseur, and a relative pipsqueak.

What Halbrook does share with his authorial betters is lack of historical training. But unlike the others, that has not made him forthright, or conscientious, or made him judicious about sticking to present-time accounts, as they have done. Halbrook assays to account for centuries of occurrences. In fact, to become the contextual master of the subject matter Halbrook retails, he would have needed studies to rival the most erudite historians in the history of the profession. Halbrook's work shows plainly that he neglected such studies.

Does Halbrook's output suggest talent comparable to that of Shirer or Rhodes? Not at all. Does the depth of Halbrook's engagement rival theirs? Not even slightly. Is Halbrook a comparable explainer, or as lucid a writer? Judge for yourself. Is anything Halbrook presents credible as history? No.

Would an admirer of the work of Shirer or Rhodes be wise to invest similar interest and trust in the work of Halbrook? Of course not.

The comparison tells you what you need to know about Halbrook's usefulness and credibility as a source for policy-making information.

[Absaroka]

Have you considered engaging the services of an editor? A basic ad hominem that doesn't otherwise engage the arguments shouldn't take more than a sentence or two.

[Joe_dallas]

Stephen Lathrop 1 hour ago
Flag Comment Mute User
There is a case to be made that even folks not trained in academic history can research, analyze, and write genuine history. It is rarely done, but it happens."

Lathrop - professional historians dont cherrypick historical writings that fit their agenda. Professional historians dont claim that historical writings that run counter to their preferred agenda never existed. You shouldnt either. Just because Stevens pulled that stunt in his Heller dissent, doesnt justify you continuing to try to pull the same stunt.

[Brett Bellmore]

"Lathrop – professional historians don;t cherry pick historical writings that fit their agenda. Professional historians don't claim that historical writings that run counter to their preferred agenda never existed. "

I think you're confusing professional historians as they'd be in an ideal world, and professional historians in the US at this time. History is about the most politicized academic field in all of academia; Remember, “Who controls the past controls the future. Who controls the present controls the past.”

1984 is an instruction manual to the left, and historians are the point of the spear in making it happen.

[MaddogEngineer]

The "professional" historian confuses me almost as much as the "professional" journalist. As if only those recognized as professionals can do it. Of course there is expertise required, but credentials do not necessarily guarantee that.

Anyone can do history, at least as is required to help decide legal cases. Case law is just a particular sub-category of history after all. Just like precedent, what usually ends up being dispositive is whether something happened in the past. In the case of 2A, that would be historic restrictions on gun ownership. For the gun controllers to win, and it would seem an easy task, is to identify several not-insignificant cases to prove gun control was a thing 200 years ago. It's not finding 50 historians who agree that gun control was a thing in the past. It's just like finding a single case which punctures the balloon.

[Brett Bellmore]

The 2nd amendment is probably the most heavily researched topic concerning the founding era, and it's been that way for decades. Popular histories of the topic by people like Halbrook have been major sellers, I've got several in my own library.

If they had that drop dead bit of evidence, everybody would know about it, would have known about it for years now. They're like a poor man digging around in the seat cushions hoping to find a million dollars.

[Bwaaah]

"There is a case to be made that even folks not trained in academic history can research, analyze, and write genuine history."

I read this over and over again. It asserts a concept of "academic history," as distinct from "genuine history." And it asserts the importance of being properly "trained" in academic history as a prerequisite to writing genuine history.

SL...consider these: the republic of the U.S; its government; its laws; its courts; its jurisprudence; Bruen.

How much training in academic history did it take for you to obliterate the genuine relevance of the Unites States in your capacious brain?

It's one man, one vote around here. There's no extra credit for your academic genius. Idiots like me stand as tall as bloviators like you. Suck on that, you over-educated gnat.

[Artifex]

Actually, Lathrop isn't the only one that goes on about "Professional historical training". There is at least one other poster that seems to have this obsession. I must admit, I do wonder what he is talking about. Most of his arguments have a vaguely acid trip vibe and I can easily imagine him posting from a basement room surrounded by photos taped to the wall with black sharpie arrows and annotations running between them.

Is professional historical training anything other than the schizophrenic voices in his ear telling him how to "correctly" view reality ?

[Bwaaah]

At least the postmodernists dismiss the existence of goal posts. These other intellectuals presume them, although in no practically articulable fashion.

It's a truly elite type of thinking. But it shouldn't mislead one to think that "the elites" share a coherent view. Like you say, each one looks upward to his uniquely righteous inner voice. I'd call that some kind of a conscience and forgive it if they didn't insist their inner visions into public policy and law.

[Jacob Grimes]

Long-winded nonsense that isn't coming from your mouth.

[Joe_dallas]

lathrop

I am awaiting your assistance in finding a "professional historian" that can find any historical record where the right to keep and bear arms was limited to any association with a militia, or any other historical record which limited said right.

Am am sure a professional historian can find this hidden written historical record.

[ReaderY]

I agree that the Constitution never uses the phrase “right of the people” without decribing an individual right, although one extending only to “the people” and not any “person” however tenutheir connection to this country.

At the same time, I don’t think that the two clauses of the 2nd Amendment should be read as if they were completely disconnected. It is just as much a mistake to disregard the militia clause as a mere preamble to articulating an individual right as it is to disregard the individual right as mere puffery to providing for a militia.

Rather, as United State v. Miller held, the kinds of arms the 2nd Amendment protects need to have some connection to use in a well-regulated militia. In addition, I think states’ constitutional right to regulate their militia includes a right to impose some regulation of arms, for example requiring standard arms and compatible ammunition, training requirements, and similar, as long as such regulations are designed to facilitate legitimate militia needs and the ability of citizens to fit into a militia if called to service, and the power is not used as an excuse to simply suppress individual arms-keeping.

It seems to me that Heller’s exclusive focus on an individual right to self-defense disconnnected from any militia purpose is as invalid a reading of the clause as this case’s exclusive focus on militias disconnected from any individual right. Rather, the individual right to keep and bear arms and a state’s right to regulate its militia well are both equally critical rights conveyed by the Second Amendment. A proper interpretation must harmonize the two rights and give effect to both. Interpretations focusing only on one clause and treating the other as effectively meaningless are both equally illegitimate, whichever clause is the one focused on and whichever the one discarded.

[Abdul Abulbul Amir]

They are not disconnected. Depending on a militia that is disarmed is foolish/idiotic in the extreme.

[ReaderY]

What does Heller do with the phrase “well regulated” in the militia clause? I don’t see that it does anything with it.

[Brett Bellmore]

Scalia didn't really like the actual militia connection to the right, because it ran the wrong way: It established that the right was to weapons suitable for military use, and Scalia found that too frightening. He wanted just a non-frightening right of the people to weapons suitable for sports and self defense.

That's why he systematically misrepresented Miller in his Heller decision. He took the Miller point about weapons in common use, and stood it on its head: The point was that you were supposed to show up for militia duty with commonly owned weapons, so the public had to be permitted to commonly own weapons suitable for militia service. Military style weapons.

Scalia turned that into weapons commonly owned by the public in contrast to military weapons, a distinction that had only grown up in the 20th century due to gun control laws in the first place.

[Joe_dallas]

Brett - I agree that Scalia botched the militia clause analysis, though in Scalia's defense, the militia clause was not an issue before the court.

As I noted below, the purpose of the militia clause was most likely to protect the right of the people to form militia's for the common defence. That purpose is supported by considerable historical writings.

[Ben of Houston]

That is precisely what I don't get about the militia interpretation. Every reading I can give on that would mean that you would need to allow military style rifles.

In the 1790s, this did include cannons on commerce ships. So, I don't see how reading it in this way wouldn't apply to a 50 caliber on your personal yacht.

[Brett Bellmore]

And the letters of marque and reprisal assumes that private ships WILL be armed.

Of course the original understanding of the 2nd amendment applied to military arms. There wasn't any distinction between military and civilian arms until the NFA early in the 20th century, they were interchangeable.

The current distinction between them is a product of the Court going nearly 7 decades refusing to uphold the 2nd amendment, while Congress set out to make sure that civilians would be armed in a manner inferior to its own soldiers. The exact goal the 2nd amendment had been added to the Constitution to prevent.

[Brett Bellmore]

"although one extending only to “the people” and not any “person” "

One weird trick for denying rights: Declare "the people" have it, but that every individual person lacks it.

No, sorry, that's not how rights work.

[IANNAL]

Like SL's "sovereignty"

[ReaderY]

See United States v. Verdugo-Urquidez.

You’re saying you think illegal aliens should have a right to keep and bear arms? Tourists? Individuals who aren’t part of “the people” and can’t be subject to a militia service obligation?

You think current federal law prohibiting illegal aliens from owning firearms is unconstitutional?

[ReaderY]

Rehnquist’s opinion in Verdugo-Irquidez holding that “the people” only applies to individuals who are citizens or have a substantial lawful connection to this country is no more a “denial” of the 2nd Amendment than Johnson v. Eisentrager’s holding that “person” doesn’t apply extraterritorially (or Roe v. Wade’s holding that it doesn’t apply prenatally) was a “denial” of the Due Process Clause.

[Brett Bellmore]

No, where did that even come from?

Of course it's a right of "the people", which is to say every person who is a member of said people. As a P&I guaranteed through the 14th amendment, it is only guaranteed to citizens. Though, of course, like any right it can be forfeited as a result of a criminal conviction, and may only be fully exercised on achieving adulthood.

OK, I see where it came from. What I mean is there's this trick opponents of the RKBA pull, where they concede the existence of the right, but claim that, as "a right of the people" it can be denied to any individual person without violating the right. It's one of those nebulous illusions that's only visible out of the corner of your eye, but vanishes where you focus your gaze.

[Randal]

I think it came from the fact that "the people" are distinct from "citizens." Maybe you could argue that the 14th Amendment only applies to citizens, but it's pretty much impossible to argue that the Second Amendment is so limited.

[ReaderY]

It’s the reverse. “The people” are a subset of “persons,” not a superset. All members of “the people” are persons. But not all persons are members of “the people.” So the 14th Amendment applies to a larger fraction of all human beings than the 2nd.

[Brett Bellmore]

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Note that P&I are explicitly limited to citizens. And if you've read the Congressional debates over the 14th amendment, it's pretty unambiguous that incorporation was to occur via the P&I clause.

Which the Slaughterhouse Court gutted. Then when the Court was in a mood to restore incorporation, they did it by inventing 'substantive due process' instead of just overturning the Slaughterhouse decision. Warping the 14th amendment, because non-citizens ended up with the rights that were supposed to be limited to citizens...

Why didn't they overturn the Slaughterhouse decision? I suspect because it was an economic liberties decision, and by that time "economic liberties" was a swear word, "Lochnerism" in the view of the Court.

[Randal]

Brett, you still haven't answered Y's question. As a right of "the people," do you agree that RKBA is a right of illegal aliens and foreign tourists, at least with respect to federal law, and also with respect to state law under Slaughterhouse?

[Brett Bellmore]

"The People" is a subset of "persons" or "people", it refers to a particular group of people. Not ALL people.

Originally "the People" meant citizens, and nobody else. The Supreme court later, (Illegitimately, in my opinion.) declared that it "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”, and so added legal resident aliens.

But illegal aliens are categorically NOT members of "the People" under either understanding. They're just "people".

As such, not entitled to P&I, not covered by the 2nd amendment, with little in the way of constitutional rights except procedural rights, "due process".

[Joe_dallas]

ReaderY comment - A proper interpretation must harmonize the two rights and give effect to both. Interpretations focusing only on one clause and treating the other as effectively meaningless are both equally illegitimate, whichever clause is the one focused on and whichever the one discarded.

Agree that far too much emphasis one either or as if the individual right vs the collective right (militia) are mutually exclusive. considerable historical writing discusses the right for the common defence, while there is much less historical writing on the individual right, those writing do exist. There is no known historical record that indicates the individual right was limited to serving in the militia.

The right of the people to form militias for the common defence shall not be infringed.
The right of the people to keep and bear arms for self defence shall not be infringed.

[Joe_dallas]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

A) A well regulated Militia, being necessary to the security of a free State, B) the right of the people to keep and bear Arms, shall not be infringed.

A & B shall not be infringed.

[JasonT20]

How do you infringe on a militia?

The main problem with talking about the reference to “a well regulated militia” as a preferatory clause is that it isn’t a clause.

“A well regulated militia, being necessary for the security of a free state…”

The subject of the supposed clause doesn’t make any action if you treat it as a separate clause the way Scalia seemed to do.

The grammar of the 2nd Amendment is awkward, at best. The people that wrote it didn’t use language the way we are taught to write English now. If we assume that they did know exactly what they were saying when they wrote it.

I join in the criticism of Heller and its progeny. Understanding what the 2nd Amendment meant at the Founding requires scholarship and expertise in how educated Americans of that era used written English. Of course, if you don’t want to do the analysis with that kind of rigor and objectivity, you can use something other than originalism to decide cases involving gun control. Perhaps you could just continue using the precedents of at least a century of law in federal and state courts that presumed that governments could restrict how and when and where people could own and use deadly weapons. (Except for those states that chose to explicitly make it an individual right in their state constitutions.)

[Brett Bellmore]

The basic problem is that scholarship has been done, it's extensive, and it supports the pro-individual rights view. It's not like the founders were reticent on this topic.

[Joe_dallas]

Further - there is no known historical record (written or oral) that indicates that the individual right is limited to being affiliated with the militia. Zero, nada, none

[Bwaaah]

As Heller points out, the "militia" was not, at the founding, anything like a standing army or police force, but rather, generally speaking, all able-bodied males. Per Heller:

the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8,
1792, 1 Stat. 271.

[Lee Stillman]

How does a decision that bemoans the abolition of a state right in Heller then turn around and bemoan the return of one in Dobbs? Do they not teach logic in Hawaii schools?

If Hawaii gets the Spirit of Aloha, why can't Texas have the Spirit of Y'all?

[Jacob Grimes]

I noticed that, too. If I recall, they decry originalism that restricts individual rights...in a case in which they restrict individual rights.

[SRG2]

The Hawaiian SC are simply wrong regardless of their own reading of history. The USSC has spoken and that's that.

IMO a court is entitled to reject SC precedent where that precedent was clearly falsely arrived at: "As the facts are X, we rule that Y" doesn't make Y binding if it turns out that the SC were factually wrong about X, but this is not a widely-held view. (Indeed, it may have a width of 1 (one) citizen.) But that's not clearly the case here.

[Bruce Hayden]

Miller v US.

Factually, the sawed off shotgun that Miller was convicted of owning WAS a military grade weapon, used as a Trench Sweeper during WW I, and in military armories at the time across the country. Indeed, it was considered barbaric by the Germans, because it was effective. But by then, Miller and his codependent were dead.

[Brett Bellmore]

And several of the Justices on the Court would have known that first hand, being WWI veterans.

You must remember that Miller was heard after "The switch in time that saved Nine", where the Court, frightened by FDR's court packing threats, gave up and largely stopped enforcing constitutional limits on federal power. There was no real question that the government was going to prevail in that case.

The fact that it was a trial in absentia was actually a good thing, in retrospect, because it allowed the Court to give the government their predestined win on the least grounds possible. If Miller had been represented, the Court would have been confronted with all the reasons he ought to prevail, and would have had to reject them all no matter how solid, generating horrific precedents.

So it was decided solely on the basis that the government had not put into the record a fact the Justices already knew: That short barreled shotguns were indeed common military weapons.

[Absaroka]

"And several of the Justices on the Court would have known that first hand, being WWI veterans."

I went to the wiki page titled 'United_States_v._Miller' and clicked through to the bios of the 8 justices who were involved in the case. The ones who were in the military ... didn't see a whole lot of trench warfare:

Reed is the most likely: "After the United States entered World War I in April 1917, Reed joined the United States Army and was commissioned a lieutenant in the intelligence division.[2] When the war ended in 1918, Reed returned to his private law practice".

Frankfurter: "When the United States entered World War I in 1917, Frankfurter took a special leave from Harvard to serve as special assistant to the Secretary of War Newton D. Baker.[19] He was appointed Judge Advocate General, supervising military courts-martial for the War Department.[20] He was commissioned a major in the Officers Reserve Corps but was not called to active duty."

Black: "During World War I, Black resigned to join the United States Army. He served in the 81st Field Artillery, and attained the rank of captain as the regimental adjutant. When the regiment departed for France, its commander was ordered to return to Fort Sill to organize and train another regiment, and he requested Black as his adjutant. The war ended before Black's new unit departed the United States, and he returned to law practice."

Stone worked for the War Dept, but I don't think as an officer: "During World War I, Stone served for several months on a War Department Board of Inquiry, with Major Walter Kellogg of the U.S. Army Judge Advocate Corps and Judge Julian Mack, that reviewed the cases of 2,294 men whose requests for conscientious objector status had been denied by their draft boards."

With the possible exception of Reed I don't see any combat experience, or even overseas service.

The others had no military involvement at all.

We may be defining 'first hand' differently.

[Noscitur a sociis]

We may be defining ‘first hand’ differently.

I think that's right. You're defining it with respect to what the various real-life justices actually did or didn't experience, whereas Brett is going with his gut of how he feels history should have played out to validate his feelings, facts be damned.

[Brett Bellmore]

OK, second hand. Point is, what they refused to take judicial notice of because the government didn't volunteer to prove Miller's case, was something that was common knowledge. There's no way they wouldn't have actually been aware of it.

It was just an excuse. You don't need an astronomer to testify to take notice of the Sun rising in the East, or a meteorologist to take notice of rain being wet.

[Absaroka]

"So it was decided solely on the basis that the government had not put into the record a fact the Justices already knew: That short barreled shotguns were indeed common military weapons."

I tried posting with links to sources, and it disappeared into the ether, so sans links:

I found both wiki and NRA articles saying that the common WWI military shotgun - M1897/M97 - had a 20 inch barrel (which is not an NFA 'short barrel). Other sources say 23 inch. They were given bayonet mounts, which would be ... somewhat problematic on a short barreled shotgun.

I believe the modern military does have short barreled shotguns, in a different role, namely breaching. That's just from various GWOT photos of troops preparing to breach a door, which was a fairly common GWOT thing to do, but not common in WWI trench warfare.

So "short barreled shotguns were indeed common military weapons" doesn't seem obvious to me. Do you have a source that they were so commonly used that their use would be common knowledge to judges at the time?

[Brett Bellmore]

My recollection, from a source I read years ago, was that the standard WWI military shotgun, already shorter than hunting weapons, was routinely cut down to a more convenient length for trench warfare.

This awesome ‘trench broom’ terrified Germans in both World Wars

"Standard shotguns were civilian versions of the weapon, often with a sling added for easy carrying. Riot guns were similar but with shorter barrels. The most heavily modified versions were the trench guns which featured shorter barrels — usually 20 inches or shorter, heat shields, and bayonet lugs."

[Absaroka]

I don't doubt that people did field expedient things with a hacksaw, but AFAICT the ones the military bought in large numbers - the M97 and M12 - had 20 inch barrels. Those couldn't be shortened at all without losing the bayonet lug, or more than a couple inches without cutting the magazine tube, which is getting out of the 'field expedient' category.

Perhaps we are differing on how common something must be for "were indeed common military weapons" to be accurate.

[Brett Bellmore]

Perhaps we differ on whether the difference between 18 inches and 20 inches has any constitutional significance.

[Absaroka]

I understood your position was that, as a constitutional matter, the NFA restrictions on shotguns must be unconstitutional because NFA shotguns were in common military use. That would imply that when talking about Miller and the NFA, the difference between 18 matters quite a lot. As I understand your view, it mattered a lot that <18 inch barreled shotguns were in common military use, and that the justices knew it from their military experience.

I think the restrictions on short barreled rifles and shotguns are profoundly silly whether or not they are constitutional.

I just like facts to be accurate; I'm certainly willing to call Shannon Watts out when she makes errors. I'm equally willing to do the same for pro 2A arguments. Factual errors don't win policy debates.

[MaddogEngineer]

It’s bizarre the Hawaii Supreme Court apparently believes, that because their amendment uses the exact same words as the federal 2A, that them deciding to interpret their words differently somehow negates the authority of the federal 2A. No, that’s not how any of that works. The federal right/precedent still supersedes, as if your state constitution had no mention of the right to bear arms at all. You’re still obligated to recognize SCOTUS precedent. (Just imagining the reactions if the Texas Court of Appeals had been so brazen. Oh wait…)

Sure, they’re probably playing the long game, hoping someday Heller/Bruen will be overturned like Roe. This is all so pointless, but apparently makes some people feel good.

[Bruce Hayden]

Maybe, but it’s far harder to overturn rulings directly based on the text of the Constitution, than on the penumbras and emanations of the 14th Amdt. Roe v Wade was built on sand, with essentially no basis in the written text of the Constitution. In my Con Law class, 35 years ago, I remember our very liberal prof criticizing it for just that, which earned him a protest to the Dean by over half the class, led by the feminists in the class.

[Randal]

I think in the end they said the Second Amendment didn’t apply in this case because the dude never applied for a permit, and Bruen allows for requiring permits.

It's kind of an impenetrable decision because it's sooooo badly written.

[Michael 11]

Does anyone ever worry that, if the second amendment guarantees a right to serve in the military as opposed to a right to arm yourself, the ASVAB (and more generally the ability of the army to reject applicants) is unconstitutional?

[Brett Bellmore]

Nobody worries about that, because it's not a serious interpretation that would ever be put into effect.

[LKB]

The Hawaii Supreme Court can blather all they want about what the Hawaii Constitution means; that’s within their remit.

But when the defendant also raised a federal 2A defense, and the SCOHw rejected it because it believed the Bruen decision on the scope of the 2A was wrong, the court went into serious delusional territory.

Assuming a cert petition is filed, SCOTUS should summarily reverse (as it is allowed to do). No briefing or argument necessary, and giving even the hint that state supreme courts can refuse to follow SCOTUS opinions must be stamped out with extreme prejudice.

[Brett Bellmore]

It's not delusion, particularly. Judicially, it's malfeasance. They deliberately ruled contrary to the applicable higher court precedent, thinking they stood a good chance of getting away with it.

Think about Judge Reinhardt, who when confronted with the fact that one of his rulings was contrary to what the Supreme court had said on the subject, replied, "They can't catch them all."

By which he meant that the Supreme court doesn't have enough time to intercept and reverse every lower court ruling contrary to what they've ruled, that if enough judges refuse to apply their precedents, the Court simply doesn't have enough "bandwidth" to bring them all to heel.

As you say, this needs to be stamped out with extreme prejudice, because if it spreads too much, the Court won't have enough time in the day to put a stop to it.

[Randal]

It generally recognizes the right to bear arms, impliedly for all lawful purposes, just as the U.S. Supreme Court did in the Heller decision.

All lawful purposes? Ok, just make it illegal, then it's no longer a lawful purpose. That was easy. Hawaii is vindicated.

Bruen is bad, but the rot begins in Heller. It started this idea that the prefatory clause is surplusage, and the right to bear arms is a free radical able to bond with any other "lawful purpose" to imbue it with guns.

Self-defense? No, armed self-defense. Going to work? No, going to work armed. Same-sex marriage? No, armed same-sex marriage.

Curing the madness will require ripping Bruen out at the root, which is Heller. We need to start over at Miller.

That doesn't mean the right to bear arms is a "collective" right. I don't even know what that means, same as the Hawaii Senate. It's an individual right, but not for combining guns with "any lawful purpose." The purpose is specified right there in the amendment.

[Brett Bellmore]

I think you're misunderstanding this.

The right is to keep and bear arms, period. That's what's guaranteed to the People, as individuals. The preface establishes that it's a right, as Coxe said, to "every terrible implement of the soldier", military weapons. But military weapons being guaranteed, you could never genuinely get any ban of lesser arms past rational basis scrutiny.

The reason they wanted an armed populace was so that a militia could be expediently raised from people who owned guns already and knew how to use them, rather than having to arm and train them to get any use out of them at all. So they'd be available in emergencies.

The reason it's an explicitly guaranteed right, not left up to the 9th amendment, is because they wanted it to be possible to raise a militia even if the government wanted it to be impossible. Remember, if you actually trusted government, you wouldn't need to enumerate rights. Rights are enumerated because you DON'T trust the government to do the right thing! So you can't interpret rights from a starting assumption that the government is trying to do something it should be doing.

No, where I think the misunderstanding comes in, is that once you have the right to keep and bear arms, period, you can of course use them for any lawful purpose. The reference to lawful purposes is just to underscore that having the right to guns doesn't mean you're entitled to use them to rob and murder.

But it's still a right to military arms.

Now, granted, Scalia didn't want to acknowledge that. He wanted to distort it into a right to every non-threatening weapon of the Fudd.

Well, that's a starting point, it's going to take a while to get the Court comfortable again with the original intent of this amendment, the judiciary had drifted so far from the viewpoint of the people who wrote it.

[Randal]

No, where I think the misunderstanding comes in, is that once you have the right to keep and bear arms, period, you can of course use them for any lawful purpose.

I agree that they can of course be used for any purpose allowed by law, but then it's fine for NY to make armed self-defense illegal. That purpose is no longer a lawful one.

The whole question comes down to which purposes must remain lawful under the Second Amendment. The answer is clear: those puposes relating to service in a militia... including potential service in an informal militia. I'm not trying to reduce the number of people who have the right, which is just about everyone. But I am trying to specify what it is exactly that the guns are for.

[YehoshuaK]

I don't think it would be enough for NY to make "armed self-defense" illegal. In the construction "armed self-defense," "self-defense" is the purpose, "armed" is just a descriptor of how the purpose is achieved.

If "self-defense" is legal, and "arms may be used for any lawful purpose," then it follows that "armed self-defense" is legal.

NY would need to make "self-defense" illegal. I really doubt that's going to happen. "From now on, it shall be against the law to exert force to prevent oneself or others from being raped or murdered. Just lie back and think of Albany." No, I really don't think so.

[Randal]

That’s the “free radical” line of thinking that Heller introduces, which IMO is the rot at its core. That’s what gets you to armed same-sex marriage and armed doctor/patient confidentiality. Just a lot of nonsense. The rule can’t be “if it’s legal, then it’s legal with guns.”

In fact, that's explicitly not the rule. Lots of legal things aren't legal when you add guns, like flying on a plane. Why? Because "any lawful purpose" is a slogan, not a rational line.

[Brett Bellmore]

" Lots of legal things aren’t legal when you add guns, like flying on a plane. Why?"

Because a lot of laws got adopted while the Supreme court was refusing, without any comment, to take any case that so much as raised the 2nd amendment as an issue. For nearly 70 years after the Miller case, if a party to a case so much as mentioned the 2nd amendment, the case got denied cert without comment. Everybody was shocked spitless when the Supreme court finally took the Heller case!

So we have a lot of gun laws on the books, some of them for many decades, that could never have survived constitutional review if it had actually been taking place.

[Randal]

No, the original meaning of 2A wouldn't have protected bearing arms on a plane.

[ScottM1A]

Assuming it was the company or person that owned the plane you are right. But government saying you can't bear arms on a plane it doesn't own would be a definite infringement.

[Randal]

Well, airports and the TSA are government-run. Are you saying it's unconstitutional for them to prohibit guns in the airport?

I don't think so.

[YehoshuaK]

Let's take this to something other than guns. Writing implements, pens and pencils, perhaps.

In your view, could the federal government Constitutionally impose a general ban on pens and pencils? Could it impose a ban on some classes of people, or in some places or at some times? Why or why not?

To me, it seems trivial to say that it could not. Although the Court has, sadly, lost sight of it, our Constitution establishes a government of limited and enumerated powers, and none of those powers includes "deciding what inanimate chattels Randal and YehoshuaK may possess."

We don't need a specific line in the Constitution to protect our right to keep and bear pens, or to use them for any lawful purpose whatever. If I want to use a pen to write, I can do that. If I want to use it to punch a hole in the shrink wrap around a new board game, I can do that too! The government would need a specific line granting it the power to forbid me to own, or to bear, or to use a pen, and it does not have it.

The same is true of kitchen knives, some of which are quite sharp and could easily be used for murder. These are, to be sure, dangerous inanimate chattels, but that does not create a new category where the government has boundless power to do as it wishes. The act of murder is illegal, and is illegal no matter how it is achieved. But I may own, and do own, numerous kitchen knives, and may and do use them for any legal purpose. And of course it would be absurd to pass a law forbidding the possession or use of kitchen knives.

Now, there are purposes for which knives are, by their nature, not suited. They in no way achieve doctor-patient confidentiality. They in no way contribute to the creation of a marriage, or a real estate deal. This is not a matter of law. This is a matter of logical irrelevance; knives simply have nothing to do with confidentiality, with marriages, or with real estate deals.

It seems to me that guns are the same. They are simply one more inanimate chattel. The federal government has no authority to control my ownership or use of guns until and unless it can point to an enumerated power granting it such authority.

You might respond that if this were true, then the 2nd Amendment would be unnecessary. The mere fact that the founding generation saw it as necessary to create this Amendment indicates that they believed that there was some general power to ban or otherwise control arms, from which they created a carve out.

And you would be right, if we didn't know that much public debate at the time focused on this very issue, and that the Bill of Rights was not created to create carve-outs from federal power, but to specify areas of personal liberty which the government might otherwise be particularly tempted to try to reduce. The debate at the time of the adoption of the BofI focused not upon "do we need to limit government in this way or not," but upon "why do we even need to mention this, government anyway has no enumerated power to do these things."

As a related point, it seems to me, as a general matter, that we are on sounder footing interpreting the Constitution tightly--that is, limiting the government's power rather than expanding it until proven otherwise--rather than loosely. The Preamble lists the purposes of government, and one is to "secure the blessings of liberty." This has the effect, in my view, of bidding us prefer the liberty-protecting interpretation of governmental power, wherever the text can reasonably be read to support such interpretation.

[Randal]

That's a great argument... when it comes to the federal government. Check out United States v. Lopez, where that argument was successful against a federal gun ban.

But it doesn't work at all with respect to the states.

[YehoshuaK]

Thank you for the kind words--and note that I did indeed apply my argument to the federal government consistently throughout my comment.

I look forward to reading United States vs. Lopez.

Moving on to States, I think that's a 14th Amendment issue.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

We've already agreed that A) the United States Constitution does not permit the federal government to outlaw the possession, control, or use of inanimate chattels. We've agreed that B) guns are inanimate chattels. We've agreed that C) therefore, the federal government cannot Constitutionally forbid citizens to possess, bear, or use guns.

Well, now A) we have the "privilege or immunity" to possess, bear, and use guns. B) The 14th Amendment guarantees all "privileges and immunities" against invasion by the various States. So it would seem to follow that C) in a 14th Amendment world, no State may forbid citizens to own, bear, or use guns.

And the same is, of course, true for all other inanimate chattels. The State (or, when relevant, the Federal Government) may forbid specific actions, such as murder, but it cannot forbid mere ownership of inanimate chattels--even dangerous inanimate chattels.

What do you say, Randal?

[Randal]

The argument doesn't work for the states. They can and do ban inanimate chattels all the time. Butterfly knives, plastic bags, various chemicals, toys with small parts, toys that look like guns... I'm sure there are a million examples. They have the power to pass laws of that kind. The thing that restricts them with respect to guns is the second + 14th amendments.

[YehoshuaK]

Yes, I thought more about my argument and decided it was invalid. If my argument here were correct, then the States would have no more police power than the Federal Government.

It remains unclear to me what exactly are the "privileges and immunities" which 14A imposes upon the States, and how the Constitutional structure differs after (as a result of) the adoption of this particular passage of 14A compared to before passage.

[subpatre]

That's "a" purpose is specified right there in the amendment; not "the" purpose. Heller is fine as it is.

As a practical matter ―many of them had experience with it― the Founders knew firearms were important not only for militia but for semi-militia defense against Indians, for food, etc. They knew shooting is a learned skill, later shown statistically in the Civil War.

[Randal]

Well, they only put one purpose into the actual text. We should at least assume that that purpose was an important one, right? Heller discards it.

[YehoshuaK]

Ok, so let’s agree that enabling militia service is an important purpose of 2A. Practical ramification–the federal government may not bar citizens from owning, bearing, or using guns suitable for actual warfare. 14th Amendment incorporates this to the States.

Conclusion: Heller does not go far enough.

[Randal]

The conclusion is that Heller doesn't go far enough in terms of what sorts of guns must be allowed. But then it does go too far in terms of what people can use the guns for. The Second Amendment, originally, required us to be able to own more powerful weapons but with more restrictions on their use.

[YehoshuaK]

I disagree. If the opening words of 2A “A well regulated Militia, being necessary to the security of a free State,” are understood to safeguard the right of individuals to keep and bear even weapons suitable for warfare, then these words have been “used up,” as it were, and are no longer available to limit the permissible usage of such weapons to warfare only.

I refer you also to my earlier comments that we should always prefer the tighter (more liberty-protecting) interpretation over the looser (less liberty-protecting) one, due to the clause in the Preamble that puts “securing the blessings of liberty” among the purposes of the Constitution.

In this case, the tighter interpretation is the one that bars the Federal Government from picking and choosing among lawful usages of weapons. And then, of course, the 14th incorporates that prohibition to the States.

[Randal]

I don’t think words get “used up” in that way. In fact, I think it’s the opposite. If we agree that the prefatory clause sets out the purpose of the right, then that helps define its contours. It means you can’t pass laws restricting military weapons, since that frustrates the purpose. But by the same token, you can pass laws that, for example, require you to keep your guns locked up when not in use, since that doesn’t frustrate the purpose.

[YehoshuaK]

If words don't get "used up" in that way, then we would need to load a given phrase with any arbitrary number of interpretations that we can think up, so long as they do not contradict each other.

It seems that, just as every phrase must carry interpretive weight, so to must every phrase carry only one interpretation, rather than several.

While admittedly it is a different field of legal interpretation, this is a basic principle of Talmudic exegesis of Biblical text. One phrase carries one legal meaning, and only one legal meaning.

[YehoshuaK]

I attempted to edit my above comment, but my time ran out. So I'll add my additional thoughts here.

It seems to me that your argument gets around my claim that the text is "used up" in safeguarding the individual right to keep and bear military-grade weapons, and therefore not available to limit this right to militia use and training, in a different way.

According to your argument, the introductory phrase is defining the exclusive purpose for which the individual right to keep and bear arms exists--namely, militia service. If so, both of your conclusions would be implicit in that one sole legal meaning. That is, because militia service is a purpose of this right, then the right must encompass military-grade weapons. But because it is the sole purpose, then the right does not encompass the ownership or carrying of weapons when that ownership of carrying is not related to militia service.

While I agree that this interpretation is plausible, I propose as an alternate interpretation the idea that the introductory clause gives an exemplary purpose, not an exclusive purpose. That is, it serves as an example meant to define the extreme to which the right runs--namely, even to include those weapons which, by their nature, are suitable specifically for warfare. According to this interpretation, while the right does include the right to keep and bear military-grade arms, it is not limited to cases where this is related to militia service.

I suggest that this interpretation should be preferred to your interpretation above. The reason is that my interpretation more fully guards individual liberty, and is therefore more in keeping with the Preamble's statement that the Constitution intends to "safeguard the blessings of liberty." To use my terminology from earlier in this discussion, my interpretation--which is certainly also a plausible reading--is tighter than yours, and therefore should be preferred.

[Randal]

I think that analysis is right, but the broader reading gets us into the thread on the other fork, which is... what are the purposes? If it's unbounded, then it's hard to explain why The Second Amendment doesn't protect the right to carry guns in airports, for example. If it's bounded, it's hard to justify an arbitrary boundary, when there's one so readily available in the text (reading the list as exclusive).

[YehoshuaK]

I'm not necessarily committed to the idea that 2A does not protect the right to carry guns in airports. That's customary, and I assume that there is judicial precedent to that effect, but in my own analysis I feel perfectly free to say that the courts, including SCOTUS, got it wrong.

As for the question "what are the purposes," I would answer "any purpose for which guns are logically relevant." Just the same as any other inanimate chattel. Target shooting, hunting, self-defense, national defense, overthrowing tyrannical government. There are probably more.