Suppose that it’s right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can’t imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks “bear[ing] Arms” means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.
Karl Llewellyn’s classic Bramble Bush introduces law students to the case method and explains that precedents have both a minimum and a maximum value. Playing within that field and finding the point in both directions “beyond which it does not make sense to go” is central to establishing the fair meaning of judicial decisions. When one is moved, as I am here, to brand the city hall shenanigans that lead to the litigation in Jackson v. San Francisco, as blatant defiance of the Supreme Court’s decisions affirming the individual right to arms, Llewellyn’s instructions help to slow and unpack that reflex.
We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)
Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.
There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.
This next Liberty Law Talk is with Nick Johnson on his new book Negroes and the Gun: The Black Tradition of Arms. Johnson writes that “The black tradition of arms has been submerged because it seems hard to reconcile with the dominant narrative of nonviolence in the modern civil rights movement.” Added to this, Johnson observes, was the rise of a “new black political class” that came to prominence “within a progressive political coalition that included the newly minted national gun control movement.” “The burgeoning black political class,” he writes, “embraced gun bans and lesser supply controls as one answer…
Will Baude has a great post up about the Heller case, which makes an important point about both the Second Amendment and originalism. Will writes: It seems to me that most of the work in Heller is done by an interpretive claim that is as much legal or theoretical as it is historical. This is the majority’s claim that “the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors,” and that even if self-defense was not the primary purpose of “the right’s codification; it was the central component of…
An article tucked away on the back page of my local newspaper caught my attention: the Library of Congress has become the latest federal agency to acquire a SWAT team. The Library of Congress? We know that only members of Congress and high level executive department officials have check-out privileges, so it is unlikely that SWAT teams will be used to recall overdue books. What then? Is there evidence of a planned terrorist plot to destroy the Madison papers and thereby our memory of constitutional government? Perhaps an assault by Taliban negotiators on some of the still-secret Kissinger papers to learn how Le Duc Tho outwitted the U.S. in the Paris Peace accords?
Thanks to Mike for his follow-up to my questions. Though enlightened, I am somewhat disappointed; I thought he was making a more radical argument, given his examples such as extending libertarian principles to foreigners wishing to enter this country (see the vigorous discussion on his original piece on immigration). I tried to base my observations solely on Mike’s own discussion, and not on opinions drawn from the vast libertarian conspiracy. I too affirm a “very moderate” libertarianism in one country, involving an “indirect utilitarianism.”
Ballooning scandals at the IRS, government snooping, and the run on ammunition are the main topics of conversation at the range these days. It’s illuminating to hear people outside the chattering class talk about checks and balances, ammo shortages as a barometer of discontent and looming tyranny. Tyranny especially, used to be the cry of black helicopter conspiracy theorists. It signals something when regular folk, will say the word and talk unselfconsciously about how to define it and what to do about it.
I have a friend who keeps going to the range with me and then threatening to buy a gun of his own. He has the grudging support of his wife who got drawn in after a round of clays where she hit more than he did.
She has questions, though. And it has been enlightening for me to talk about familiar things with an open-minded person who comes at gun issues basically from what she sees on TV. She was perplexed about many of the exchanges in the current debate.
She listened patiently to my critique of the “bad gun formula of marginal supply controls as recipe for creeping disarmament.” Against scary looking pictures of AR-15’s it didn’t really click. But she was unwilling just to nod and move on. Her need to understand forced me to work a little harder on the details and to appreciate something I had lost sight of.
I realized that those of us who focus on these issues sometimes use rhetorical tools that fail to resonate for folks who are increasingly lured to think in pictures rather than words. This helped me understand why the bad gun formula as a slippery slope to full confiscation argument might not convince some people until you tell the long story and illustrate it in detail. I thought it might be worth doing that here.
The distinguished literary scholar Stanley Fish can teach one a great deal about argumentation. Lacking a law degree, he has also served on law faculties and even as an assistant dean in the Duke Law School. What business does this academic superstar, portrayed as lusty professor Morris Zapp in a David Lodge novel and derided by Camille Paglia as a “totalitarian Tinker Bell,” have teaching law?
I have seen this man of the political left outrage and delight audiences at scholarly conferences and venues, including a Federalist Society convention. A friend also reported to me that Fish once asked him the difference between a West and an East coast Straussian, and, upon hearing a brief explanation, Fish declared himself to be a West coast one. (See comment 2 below.) That is, I infer, Fish agreed with these Declaration of Independence conservatives on the vital importance of the political context for establishing the meaning of a text.