More Half-Assed Constitutional Interpretation – God of the Machine
Jul 012002

Our guest Constitutional scholars, last seen discussing the Second Amendment, are back for more.

  5 Responses to “More Half-Assed Constitutional Interpretation”

  1. First of all, I’m not sure I can accept your assertion that the phrase "well-regulated militia" does not apply in any way to the second phrase, except to indicate which classes of arms the second phrase applies to. If the first phrase modifies the second as to classes of arms (the word ‘militia’ applies here; apparently you’re arguing that a militia would carry handguns, rifles and automatic weapons but not bombs or other larger weaponry, a dubious semantic assertion, I’d say), why wouldn’t it also modify it as to law enforcement restrictions? Here ‘well-regulated’ applies. If they didn’t envision any restrictions whatsoever being put on gun ownership, why modify the word ‘militia’ at all? I’m following your dictum that we must not try to peer into the framers’ minds here, just look at the language itself. So I ask you: what purpose does the phrase "well-regulated" serve, if it cannot be applied at all to the "right of the people to keep and bear arms"? This makes no sense to me.

    As to your earlier question about what constitutes a constitutionally valid waiting period, and what doesn’t: I wouldn’t pretend that the amendment gives us a specific answer to this question — any more than it tells us which weapons would be legal for private ownership under the amendment and which wouldn’t, in an era most of whose weapons didn’t exist when the amendment was written. You’re playing on both sides of the street here: claiming specific answers where you want them (these weapons are acceptable, these aren’t) and claiming the impossibility of arriving at specific answers when it suits you (asking for a specific acceptable waiting period).

    Ultimately, there are too many questions whose answers cannot be specifically found in the few words of the amendment. Which weapons should be privately ownable? How much information can the government collect about who owns them? What should the penalty be for illegal usage of weapons? The answers, it seems to me, all derive from the democratic process, which tends to arrive at good solutions over time, in the same muddy, general, halting way that evolution arrives at positive adaptations over time. If the people decide that our representatives are allowing too long a waiting period, for instance, and infringing on our rights of gun ownership, over time we will tend to elect representatives who will roll back said restrictions. That’s the genius of the American system. We now have a fairly conservative Supreme Court (way too conservative, liberals would say), as a direct result of a generation in which a liberal Court rolled back individual and state rights beyond what most Americans were willing to support. The result of the 60s and 70s was 12 years of Reagan and Bush, a raft of conservative judicial appointments, and a Court that’s now pushing the American center slowly back to the right. So it goes.

    I know what you’ll say: that we’re arguing about the meaning of the amendment and nothing else, so all my mouthwash about democracy and the Court is meaningless. I disagree. I think that democracy and the shifting composition of the Supreme Court (not to mention the lower courts) are precisely what the framers had in mind when they wrote the Constution and the Bill of Rights in the brief, often general language that they did. A different nine judges twenty years hence will interpret the 2nd Amendment differently than this one would, and that’s fine by me. If this makes me an advocate of a "living document," perhaps that best describes my view of Constitutional law. I look forward to moving into that more general discussion anyway, and perhaps returning to the well-regulated militia in light of its result.

  2. I have already answered your question about the well-regulated militia twice. Please read, then reread, the following passage, slowly and carefully, before asking it again.

    The Amendment means, approximately, "the people must be allowed to keep and bear arms so that they will be prepared to join a militia." Obviously one can assemble a militia from people who have no weapons training. What one can’t assemble is a well-regulated militia. The implied syllogism would make no sense unless the militia in question was well-regulated.

    You have elementary difficulties with grammar. "Well-regulated" is an adjective that modifies "militia." One cannot wrench an adjective out of one context and reapply it somewhere else just because one is keen on having guns registered.

    I have also already answered your question about why restricting certain types of weapons is constitutional but licensing is not. From my interpretation it follows that, if the people have the right to keep and bear arms to prepare them to join a militia, any restrictions on such a right must be along the same lines. In other words, the government is allowed to restrict arms that in private hands do not further the purpose of preparing to join a militia. I also pointed out that the word "arms" itself eliminates certain classes of weapons. How does this possibly allow for gun registration?

    It is bad enough that you can’t remember what I say. What’s worse is that you can’t remember what you say either. You’ve already acknowledged that my reading of the amendment is correct. Certainly you have failed to provide a different reading that’s remotely coherent. Now, out of left field, you retreat to the view that "Ultimately, there are too many questions whose answers cannot be specifically found in the few words of the amendment." The Amendment doesn’t really mean anything, so my liberal friends and I can do whatever we want, thank you very much. Isn’t this exactly where you started?

  3. Okay: if I have problems with grammar, you have problems with basic vocabulary. The phrase "well-regulated" does not mean "well-trained;" it means "effectively overseen and controlled by law." Believe it or not, I do understand that the phrase "well-regulated" modifies militia; but the entire phrase "well-regulated militia" in turn modifies the peoples’ rights; if it didn’t, it would serve no purpose at all. You have no problem applying that well-regulated militia to explain why preventing private ownership of certain classes of weapons fails to constitute infringement; but when it comes to government keeping track of who is preparing to join that militia, all of a sudden, no meaning is to be derived from the first phrase whatsoever. To wit: if the right to bear arms in order to join a militia can be infringed only by restricting classes of weapons
    that logically belong in a militia (more on that rather absurd proposition later), then the phrase "well-regulated" would serve no purpose in the amendment whatsoever. Now who is it again who has grammar problems?

    Yes, I agree that your reading of the amendment is correct. However, I do not agree, and never have, and doubt I ever will, that a gun database constitutes infringement of it. Certainly nothing you’ve said on the subject comes anywhere near a persuasive argument.

    Well, for one thing, I don’t believe that we need to prove that the amendment "allows" for gun registration. I consider gun registration a commonsense law enforcement and crime prevention measure that doesn’t infringe on a private citizen’s right to buy and keep a gun. If a gun database is anything, it’s an infringement on a private citizen’s right to privacy, which if I recall correctly, you have argued doesn’t exist in the Constitution at all.

    I stand by what I said about the amendment’s opaqueness on any number of specific questions relating to gun ownership. You argue that "the government is allowed to restrict arms that in private hands do not further the purpose of preparing to join a militia."

    Meaning what? How exactly does this one sentence define for us the word "militia?" Considering that there is no longer any such thing as private citizens’ militias in this nation, I hardly see how you can argue that this amendment specifically tells us which weapons further the purpose of joining a nonexistent entity. A citizens’ militia circa 1780 would have been militarily competitive with a government battalion. Citizens’ militias no longer exist, yet you blithely assert that the amendment limits weapons ownership to hand-carried weapons — certainly, you argue, "militias" wouldn’t train or use any weapons that would be inconvenient to your argument today. Well, on what evidence? Have you actually looked up a contemporary definition of "militia?" I just did, and it renders your argument laughable. A militia is a military force; an "army" force comprising private citizens; secondarily, the entire military force of a nation. Forget your idea that the contemporary meaning of the amendment limits arms ownership to handguns, rifles, et al. It’s out the window. Sorry.

    I do agree with your reading of the amendment: it gives private citizens the right to own weapons in order to theoretically join some sort of defensive militia in event of tyranny [an aside here: having actually looked up the
    word ‘militia’ in rereading this note, I’m not even certain I believe your basic definition holds water]. I’m even willing to stipulate that the only proper way to read the Constitution is to do our best to understand the language clearly (although I do wonder how I’d feel if I read any serious scholarship on the issue, in the absence of any relevant knowledge on my part, I have no objection to your methodology). I just don’t see any definitive justification in the language/meaning of the amendment for your conclusions. I stand by what I said: there is considerable vagueness that allows for differing interpretations over time, as modified by evolving democratic process. That doesn’t mean I think the amendment means nothing. Quite the contrary; I consider the Constitution and Bill of Rights one of the greatest documents produced by the human race. I also feel, however, as Justice Jackson did, and I hope I paraphrase correctly: we must use common sense, lest we turn the Constitution into a suicide pact. Your notion that the cops shouldn’t be able to keep track of who owns which guns, because this would somehow take away citizens’ right to join a nonexistent militia strikes me as exactly the sort of absurd reading he was talking about.

  4. To refine my latest thoughts with greater precision:

    The word "militia," then as now, means "private army." Any army worth its salt today has a lot more than handheld weapons. If you wish to stand by your interpretation of the 2nd Amendment, then let’s be clear: you are arguing that the Constitution today explicitly permits private armies, with all that this implies. Here Jackson’s famous comment about the suicide pact comes to mind: the value of private armies was obvious in 1780, but the idea is obviously untenable today. Here’s my new and, I expect, final argument: absent massive reinterpretation of the type that you expressly forbid, the 2nd Amendment has become obsolete.

  5. We’re right back where we started aren’t we? You agreed that plain meaning is the only valid way to interpret the Constitution; then you began quoting Justice Jackson on the suicide pact, which is just an excuse for subjective and selective interpretation, although a catchy and famous one. (In any case it is absurd to say that it’s "suicidal" not to keep a national gun database.) You agreed that nothing in the Constitution can be obsolete — as in, "I don’t like what it says so I’m gonna ignore it" — but now you think you’re entitled to take such a view of the Second Amendment. You agreed that the Second Amendment applies to individuals; now you think it doesn’t apply to anything at all.

    And all because you looked up a word in the dictionary. Seriously. You looked up "militia" in the dictionary, and found "private army." You think private armies were "useful" then and not now. "A citizens’ militia circa 1780," you write, "would have been militarily competitive with a government battalion." I love "militarily competitive," I really do, but let’s think for a second about what a private army is. It is a military force under the control of someone other than the government, like what warlords have in Afghanistan. How can you think the Constitution authorizes such a thing?

    You interpret the Second Amendment, then, as granting the people the right to keep and bear arms so they can more easily form private armies to war — excuse me, "militarily compete" — with the national army. And you maintain that that was a good idea then but not such a good idea now, so the Second Amendment is obsolete. This sounds like a caricature but it is your literal argument to the best of my understanding.

    What the Second Amendment means by "militia" is what I’ve been maintaining all along: a group of citizens, appointed and trained by the state, capable of acting to aid the common defense. This interpretation has the additional merit of actually making sense. You can find a history of the term here and a brief summary of the Supreme Court decisions relating to it here. Of the numerous contemporary citations particularly noteworthy is Article 1 Section 8 of the Constitution itself, which provides "for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions."

    It’s really quite an interesting document, the Constitution. You might want to read it sometime.

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