Absolute Rights, And Mostly Wrong

The NY Times editors are tackling gun control (they favor it!) with a series of hard-hitting, head-scratching editorials.

First, a call for reason and flexibility:

Those who believe, as we do, that the Second Amendment does not provide each American with an absolute right to own guns, must recognize that this position can alienate sympathetic listeners and is not likely to prevail any time soon. We must respect the legitimate concerns of law-abiding, safety conscious gun owners, in order to find common ground against unyielding ideologues.

Wait, the view that the Second Amendment right to bear arms is absolute has prevailed? Are there other examples of unlimited rights in our Constitution? I may just walk into a crowded NY Times lobby and yell "Fire!"

The editors return to the third planet a bit later:

There are no rights granted by the Constitution that are so absolute that they erase concerns about public safety and welfare.

And in a subsequent editorial:

Personal Guns and the Second Amendment

...

The text of the Second Amendment creates no right to private possession of guns, but Justice Antonin Scalia found one in legal history for himself and the other four conservatives. He said the right is not outmoded even “in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”

It is not just liberals who have lambasted the ruling, but some prominent conservatives like Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. The majority, he wrote, “read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.” He said the court undermined “conservative jurisprudence.”

In the real world, however, criticism has abated in part because the majority opinion was strikingly respectful of commonplace gun regulations. “Like most rights,” Justice Scalia said, “the right secured by the Second Amendment is not unlimited.”

And: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms” —“prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

Justice Scalia does not say how federal courts should evaluate such regulations and the Supreme Court may need to return to this issue soon, to resolve a substantial disagreement that has arisen in federal appeals courts.

So the Times view that the Second Aemendment creates only a limited right to bear arms, which they initially claim to be controversial, is in fact the law of the land as explained by Justice Scalia. It's two papers in one! FWIW, they probably meant to write "...the Second Amendment does not provide each American with *any* right to own guns". "Any", "absolute", hard to tell.

As an exercise for the reader, imagine the Times re-writing this to describe Roe v. Wade and its follow-up. The notion that a right so clearly enumerated in the penumbra of the Constitution could be questioned or subject to modification is anathema in that context. Whatever.

 

 

Comments

[Rob Crawford]

There are no rights granted by the Constitution that are so absolute that they erase concerns about public safety and welfare.

Say the people who routinely commit treason under the cover of the 1st Amendment.

[Soylent Red]

Rather than focus on what the Constitution allows me to do, how about we focus on what the Constitution forbids government from doing.

As the Framers intended it.

The Constitution limits government, not citizens. How hard is that for people to grasp? It's so simple even Soledad O'Bimbo should be able to understand.

And why do I want or need the plasma rifle in the 40 watt range? Shut up, I explained. I don't have to explain how I use my inalienable right of liberty to any one.

[Danube of Thought]

I've always thought Wilkinson had a point: the people's right to enact laws via the democratic process ought not be proscribed in the absence of a clear Constitutional constraint. Roe v. Wade is as horrible an example of just such a proscription as any I can think of. The Heller case is not nearly as bad, but I've always thought it was on rather shaky ground.

[MikeHggns]

It's so simple even Soledad O'Bimbo should be able to understand.

Uh...

[Soylent Red]

Let me extend and revise...

The degree that the Federal government abridges any of my rights is dictated by THE CONSENT OF THE GOVERNED.

Don't like guns? Draft an amendment and put it to a vote for ratification you miserable fascist c*cksuckers.

[Rob Crawford]

Don't like guns? Draft an amendment and put it to a vote for ratification you miserable fascist c*cksuckers.

Revoking the 2nd Amendment would not remove your right to defend yourself; it would simply make it easier for the government to violate that right.

[NK]

RobC@12:28-- that was the first thing I thought of.

[centralcal]

O/T - but I thought this might interest some of you:

Urgent: Deeper explanation of Boehner’s Plan B

Per Pergram-Capitol Hill

Some more details now.

First of all, House GOPers will hold a closed conference meeting at 5 pmet to explain how the Plan B approach works, prospectively Thursday.

I am told that this will be subdivided into two bills.

One key to note is that at least one of the bills will approve a RENEWAL of Bush era tax breaks for those earning less than $1 million. I am told the legislation is SILENT on RAISING taxes for those making more than $1 million.

In other words, House GOPers NEVER HAVE TO VOTE FOR A TAX INCREASE.

This is some parliamentary sleight of hand. But many GOPers would not vote for such a plan. But because the R’s are structuring the bill(s) in this way, I would greatly believe this enhances the chances of it passing.

The R’s then kick the bill to the Senate and tell Reid to deal with it. If he can’t or won’t….then they can lord the “Senate doesn’t do anything” argument over them.

The whip operation will commence this evening.

Chad Pergram
FOX News
Senior Producer for Capitol Hill

[boris]

"the people's right to enact laws via the democratic process ought not be proscribed in the absence of a clear Constitutional constraint"

Hence our disagreement over the purpose of the 1st clause of the 2nd. IMO the founders were saying to the people "Do not tamper with this one, on which your freedom and survival depend."

Of course such warning implicitly admits the people have the power to change and/or ignore.

[NK]

Thanks CC-- I'm fine with that Plan B as explained by the Fox guy.

[Rick Ballard]

"The notion that a right so clearly enumerated in the penumbra of the Constitution could be questioned or subject to modification is anathema in that context."

Well, the right to infanticide is as fragile as a new almost born baby. The emanation was barely quivering in the soft shade of the penumbra when found. Surely the difference between such a fragile and delicate right as infanticide and the outrageously robust patriarchal impulse to steal the bread of highly trained and unionized professionals, capable of protecting every citizen at every moment, by engaging in self defense is as night to day.

[Melinda Romanoff]

c-cal-

Pelosi, Reid, and the WH have shot it down. Reid was 3 minutes after Boehner laid it out.

[centralcal]

Actually, Mel you are only partly correct - they did indeed shoot it down as you state; however Pergram's reporting above took place after that and the GOP conference will still be going forward at 5pm.

[Danube of Thought on IPad]

I fully understand the argument, Boris. I'm merely saying that there is a bit of ambiguity in the language, and where you have such ambiguity the people's right to vote on the matter should not lightly be constrained. Anyhow, I like the result in Heller. If the Court is going to do things it shouldn't, it's nicer when they do them in my favor.

[NK]

CC/MelR-- are the House repubs going ahead and voting Friday to extend Bush rates BELOW $1M? If yes, I think thta's the right play... that's why reid and obama reject the move utterly.

[Melinda Romanoff]

I know. Another exercise in futility versus the Senate Caucus of Unproductivity and Political Revenge.

[boris]

"there is a bit of ambiguity in the language"

Too easy. We don't agree therefore there is a "bit of ambiguity in the language" otherwise everyone would be in complete agreement.

That has not been my experience at all.

[matt]

The pretzel logic of the Times and the rest of the Blue Left crowd refuses to recognize 235 years of history.

One of the primary fears of the Founding Fathers was of an oppressive state and the 2nd Amendment was enacted to ensure the means by which to rebel against such repression. The theme is repeated over and over and over again from Ben Franklin's "a republic, if you can keep it" down through the first 30 years of the Republic.

From that point it was dogma. Guns have been a part of our national narrative since then and only in 1927 was the first law considered restricting gun ownership, which became the ban on automatic weapons in light of the Mob and gangs like the Barrows and Dillinger.

Government fostered firearms usage through a number of programs and it proved telling in World War II, where the average American infantryman was a far better shot than his enemies and even allies.

The arguments of the Left are sophistry at its most extreme and must be resisted as such. There is no ambiguity except that introduced by the sophist Left.

[Danube of Thought on IPad]

You and others say there is no ambiguity; Wilkerson and I (and others) say there is. Since the language isn't going to change, that is where matters will have to stand.

[boris]

"You and others say there is no ambiguity ..."

Include the founders.

The statement clearly says "X"

We read that satement as saying "Y"

The person who wrote that statment also wrote of his intention to say "X"

The satement must stand on it's own words and we read those words as saying "Y"

Such nonsense invalidates government by law instead of government by men.

[boris]

satement = statement
statment = statement

[Captain Hate]

The Stache vs Cankles: http://www.youtube.com/watch?v=xxa_hiT_UwY

[Thomas Collins]

DOT, one important distinction between the SCOTUS gun cases and the SCOTUS abortion cases is that, in the gun cases, SCOTUS is preventing the legislative and executive bodies from imposing on a right grounded in the basis of our self-evident truths polity. That we formed a nation to secure unalienable rights shouldn't allow the State to impinge on basic self-defense measures. I realize many constitutional scholars pooh-pooh the idea that the principles of the Declaration should be given any weight in interpreting the Constitution. For myself, I think the Declaration is a source superior to Herbert Spencer's Social Statics, foreign law and whatever evolving standards of supposed right thinking society SCOTUS decides to impose on the people.

[Danube of Thought on IPad]

Boris, I recommend you read Judge Wilkerson's article.

TC, I don't think Wilkerson relies on any such exotica. His point is simply that few rights are more fundamental than the people's right to vote. If the Second Amendment read "every citizen has the right to keep and bear arms," I'm sure he would have no trouble with Heller. Indeed, Heller would never have arisen.

[boris]

If the Second Amendment read "every citizen has the right to keep and bear arms," I'm sure he would have no trouble with Heller

If that were true then Wilkerson clearly did rely on such exotica. Essentially the argument is "doesn't matter what they said they said, they didn't use the proper magic modern legalistic boiler plate terminology to express that particular restriction on government infringement of individual liberty."

[sbw]

TC, I'd go further back than the Declaration of Independence.

Individuals with the ability to protect themselves created a state to assist them.

A state that assumes authority to remove the individual's ability to self-protection, oversteps its reason to exist.

[Danube of Thought on IPad]

I can't understand anything Boris just said, but I imagine he is claiming Wilkerson is one of those left-wing judicial activists.

[Ignatz Ratzkiwatzki]

-- The majority, he wrote, “read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment.--

It is only ambiguous absent the historical and legislative context surrounding it. It was not ambiguous in the slightest to the men who wrote it.

The court never acknowledged it because it never ruled on it. The implication seems to be it had many opportunities over those 200 years and refused to acknowledge the right. That is at best misleading and undercuts everything else Wilkerson says.

[boris]

"It is only ambiguous absent the historical and legislative context surrounding it."

I'd quibble that it is not ambiguous in any context.

One of argument I've seen basically amounts to "we don't see any reasonable purpose for the 1st clause other than to assume it was meant as some kind of qualification or restriction. So that must be what it means even though it was not written as such. But then things are often written poorly so let's assume that is the case here"

[boris]

One argument I've seen ...

[boris]

"I imagine he is claiming Wilkerson is one of those left-wing judicial activists"

Actually I dispute your assertion that using "every citizen" instead of "the people" would have eliminated ambiguity for Wilkerson and everbody else.

There is no ambiguity to eliminate, but it would have made one of the misreadings more difficult to assert with a straight face.

[boris]

Seems to me misreading "the right of the people [in the militia] ..."

Can also be misread "the right of every citizen [in the militia] ..."

[fdcol63]

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322

[fdcol63]

And other pertinent 2nd Amendment quotes:

http://www.uhuh.com/guns/2ndquotes.htm

[Janet]

Thanks for that link, fdcol63.

[Thomas Collins]

On the issue of whether the first phrase should be viewed as qualifying any individual right to bear arms, I found Jim Rhoads' 9:34 PM post in the "Saturday in Connecticut" thread persuasive. The post read as follows:

"With respect, Steve, the Second Amendment reads:

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.

It does not read:

The right of the people to keep and bear arms, shall not be infringed so long as such arms are being used in the service of a well regulated militia necessary to the security of a free state.

I submit that had the drafters of the Bill of Rights meant the latter interpretation, they would have said so. Many of them were lawyers steeped in the English Common Law, and knew how to draft conditional rights which were a staple of real estate law for a long time prior to 1789 when they drafted the Second Amendment."

[Danube of Thought on IPad]

"It is only ambiguous absent the historical and legislative context surrounding it."

Not so. What gives rise to the ambiguity is the "well regulated militia" preamble, which is rendered mere surplusage by the absolutist interpretation.

Anyhow, one surefire way to avoid any discussion of what to do in cases of ambiguity is to deny that there is any ambiguity. Works every time.

[boris]

"which is rendered mere surplusage by the absolutist interpretation"

Assertion devoid of any basis.

None so blind as those who say "why put that in there unless it's supposed to qualify the scope of the right in question?"

Because of reasons X and Y ...

"Nah don't see it, so s'not there".

[boris]

Besides ambiguity is not created by the (false) claim that the clause adds nothing in the interpretation documented by the writers themselves.

It would be ambiguous if it could be read more than one way. It can't. In order to misread it one has to assume it was miswritten. That is not ambiguity.

[Thomas Collins]

Has anyone been able to access Judge Wilkinson's law review article on Heller and Roe online? If so, would you mind linking it here?

[boris]

Consider the assertion ...

A well armed citizenry is very very important so the right of the people to keep an bear arms shall not be infringed.

No problem right? the "citizenry" and "the people" are the same group. Supposedly the problem arises when the groups are different. The "well armed militia" is a subset of "the people" (or not, YMMV).

That does not create an actual problem though. Consider this assertion ...

In cases of dire emergency well armed volunteers are very important so the right of the people to keep and bear arms shall not be infringed.

Again, the volunteers are a subset of the people but it's clear they are well armed because the people have the right to keep and bear arms. A claim that assertion is ambiguous because it can be interpreted to mean the volunteers will be issued weapons by authorities would be absurd.

[Danube of Thought on IPad]

TC, Tom M provides a link under the word "wrote" in the excerpt from the New York Times in the topic paragraph.

[narciso]

It doesn't seem like one of his better efforts,

[Danube of Thought on IPad]

I know of no other constitutional provision that undertakes to explain itself in a prefatory clause. That clause is what gives rise to the controversy.

I am a Life Member of the NRA. My father served a term as president of that organiztion. Had I been on the Heller Court, I would have voted with the majority. I began my comments on this thread merely by saying that Wilkerson had a point, which he clearly does. You weigh the points on both sides, and you come to a judgment.

[boris]

"I know of no other constitutional provision that undertakes to explain itself in a prefatory clause"

I suspect the founders would object to my use of "so" between clauses of my volunteer example. IMO they deliberately avoided any dependency between their clauses. Writing it this way for example ...

The right of the people to keep an bear arms shall not be infringed because a well regulated militia ...

... Would have left open an inference if times changed such that a well regulated militia was no longer essential ... the right could be infringed. Hence the 2nd established 2 related but independent things. The right to keep and bear arms, and their belief in the importance of citizen militias.

If the people can't keep and bear arms, then citizens won't be able to form an effective force for their defense when needed. Simple as that.

[Duck, goose, duck, goose, duck.....]

As I mentioned earlier, I believe the founders put 'well-regulated' and 'shall not be infringed' in the same sentence so that we would argue about it rather than shoot each other over it.
==================

[narciso]

Heller is just a tiny crack in the 'Cave' wall, it's still virtually impossible to 'legally'
acquire a gun, in D.C, criminals have no such concerns, regulation shouldn't add up to a de jure ban,

[Thomas Collins]

Thanks, DOT. I missed that link.

[boris]

Wilkerson:

"For a court that decides to strike down legislation based on an interpretation of the Constitution that is only plausible and not incontrovertible will appear to the public to be exercising discretion. And when a court appears to be exercising that discretion in a way that arguably accords with the political preferences of the judges in the majority—as was the case in Heller more members of the public lose faith in the idea that justice is blind."

Oh the humanity.

More ...

Justice Scalia, rejecting the arguments made by professors of linguistics and English to the contrary, dismissed quickly the possibility that the prefatory clause could restrict the operative clause, and concluded that the right in the operative clause need only be “consistent with the announced purpose” in the prefatory clause. Justice Stevens in his dissent called this ap-proach “novel” and not in keeping with conventional interpretive methods.

Scalia refuses to go beyond what the words say and use the emanations and penumbras in keeping with conventional interpretive dance methods.