Thoughts on an "evolving constitution"

" We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press. In the structure of our legislatures, we think experience has proved the benefit of subjecting questions to two separate bodies of deliberants; but in constituting these, natural right has been mistaken, some making one of these bodies, and some both, the representatives of property instead of persons; whereas the double deliberation might be as well obtained without any violation of true principle, either by requiring a greater age in one of the bodies, or by electing a proper number of representatives of persons, dividing them by lots into two chambers, and renewing the division at frequent intervals, in order to break up all cabals. Virginia, of which I am myself a native and resident, was not only the first of the States, but, I believe I may say, the first of the nations of the earth, which assembled its wise men peaceably together to form a fundamental constitution, to commit it to writing, and place it among their archives, where every one should be free to appeal to its text. But this act was very imperfect. The other States, as they proceeded successively to the same work, made successive improvements; and several of them, still further corrected by experience, have, by conventions, still further amended their first forms. My own State has gone on so far with its premiere ebauche; but it is now proposing to call a convention for amendment....

But can they be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things. The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals, of a thousand forms. To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man." Letter of Thomas Jefferson to Major John Cartwright, 1824

"Nothing then is unchangeable but the inherent and unalienable rights of man." As much as anything else, the Constitution was dedicated to that very principle; some things are not taken to the bargaining table of elections, and the Bill of Rights was one of those. Whereas Locke and Rousseau may have been naive about how compacts were made/arose, the Framers were surely not; the Constitution was a very deliberate act of compact-making. I would agree with Volokh and Jefferson--the ratification of the Constitution was a legal compact with the people, and may need to change, but only through the procedures ratified.

However, as Jefferson notes, the Bill of Rights, the inherent and inalienable rights, cannot be changed and have the compact remain intact because they are the inherent cause/purpose of the compact.

If you accept my argument, I think you must conclude Congress has already invalidated the compact--repeatedly--and may soon do it again with an amendment to invalidate the First Amendment--a prohibition flag desecration. How can you amend away the freedom of speech and behave as if you are upholding the Constitution?

We have watched the Second Amendment "evolve" at law from apparently an inalienable individual right to a collective state right and back again (maybe) to an individual civil right. Jefferson was correct in principle regarding the permanence of the "inherent and inalienable rights," but politics works with a different standard. Apparently the Constitution is all up for grabs and will evolve according to what ever is most expeditious for the need of the moment.

In reading David's evaluation of the 2nd amendment as granting an individual right to own firearms, he doesn't mention how the Supreme Court has ruled on this question over the years. Only that Congress has apparently decided it is an individual right in various instances.

I am not an attorney, nor can I cite the case law, but I'm willing to bet all of you can. But, from what I understand, the Supreme Court has ruled repeatedly that the 2nd amendment does not grant an individual right to own firearms.

The more interesting discussion to me would center not on whether or not Americans have a Constitutional right to own firearms, since we clearly do own them. Rather, I am always interested in hearing how pro-gun folks support a stance that no regulations or restrictions on firearms possession are legal. The all or nothing approach by pro-gun forces always fascinates me because all of our rights have been abridged--with the full cooperation of the American people and their elected representatives. But, somehow, gun advocates think the possession and ownership of guns should be exempt from any regulation or restriction.

I find it interesting that when it comes to guns, those most active in the pro-gun movement point to the 2nd amendment as if their interpretation of it is all any of the rest of us should need to justify the all guns, all the time world they want us all to live in.

First time on the site, and will look forward to reading more.

Lindsay O.

Lindsay,

You write:

But, from what I understand, the Supreme Court has ruled repeatedly that the 2nd amendment does not grant an individual right to own firearms.

Your understanding is wrong. The Supreme Court has never ruled as much.

The Supreme Court only once addressed the Second Amendment right directly, in U.S. v. Miller, nearly 70 years ago. The Court held that certain weapons are not the type that individuals could be expected to possess and thus such weapons are not covered by the Second Amendment. The opinion, both in its explicit language and its structure, assumes that the Second Amendment is an individual right.

At other times, the Court at the very least strongly suggested it is an individual right when reflecting upon it in non-Second Amendment cases.

I don't think anyone holds the extreme position you ascribe to pro-gun people. The most ardent Second Amendment supporters typically believe that violent criminals and mental incompetents should not have guns, and do not support private ownership of nuclear weapons, etc.

You are correct that other rights have been abridged. That's all the more reason to preserve the Second Amendment.

The notion of the living Constitution is a remnant of the leftist-MSM and the Democrat party monopoly of the public square. Once upon a time, the lies could be foisted upon the public by the Democrat party, then repeated daily by a closed media cartel. Those times have changed. The biggest example of the change is Dan Rather and his inability to lie about Bush's guard service. Inspite of all the media's resources, all the media's power, Dan was sent packing for his misdeed.

There is no turning back. The Internet changes the playing field and ideas can now be publically discussed and debated. The awareness of the public about what the courts have been up to is now exposed. The Terry Shiavo case injected the issue of the proper role of judges into the public discourse.

Now with a Supreme Court vacancy, the issue of the proper role for SC judges is getting clearer in the public's eye. I only wish that the Republicans and groups like the NRA would drive it home -- The time is right to take the offensive and bring back originalist judges as the norm not the exception.

Judges are to be the umpires, thier rule book is the Constituion. Nothing more, nothing less is acceptable. We don't need anymore penumbra and emanations rulings.

Hi Lindsay, Welcome to the site. I don't have a law degree either. Rejoice. Whatever sins we commit here have to be attributed to our ignorance and forgiven. I'm sure you expected your post to be picked at. I'll do some more. You spoke of a right "granted" by the 2nd A. How would an inherent, inalienable right be granted by the Constitution?

Lindsay,
I'm one of those gun nuts who thinks all prior restraint based gun control laws are unconstitutional as well as immoral. Absolutist is the term I prefer but I'm not a stickler.

It's a very simple premise really: prohibition on an immaterial object or on certain people that are otherwise free in society does not do any material good to society while it can & does cause harm to the individuals affected by it.

Banning a certain type of weapon really doesn't do much good. Take the NFA which severely regulates automatic weapons (although not an outright ban it's burdensome enough to have a similar effect). There is no shortage of automatic weapons for those who would break the laws that regulate them. Consequently if someone intends to rob a bank or kill people a law about possessing an object is not a deterent. However it does prevent people with more noble goals from having such weapons.

Law prohibiting violent felons from having firearms is another thing most people assume is okay. But I'd submit that such laws (especially how they're worded currently) are not okay. If a person cannot be trusted with a firearm then the solution is to keep him/her sperate from society; not let them loose & tell them that having guns is naughty. Likewise if a person can be trusted in society with cars, knives, gasoline, & various other dangerous objects then I see no reason to deny them arms.

While other constitutionally enumerated right have been stpped on, that's no reason to rationalize stepping on another one. So support of an absolutit view of the 2nd aendment is not in conflict with the way other rights are treated, since most of the absolutists I know feel the same way about the other rights enumerated int he constitution. It's just that it's much more societally acceptable to trash the 2nd aendment, hence it is in need of more attention, especially since once that one is done away with it elimintes a very useful last ditch option to preserve the others.

But in principle the dangers the 2nd amendment tends ot face are the same (in principle) that the other rights in the constitution face. If we can "evolve" our understanding of the text to the point where there is no recognized individual right to possess arms then what makes you think the same fate doesn't await your freedom of speech or protection against compelled self testimony? Defense of one is a defense of all where the bill of rights are concerned. Similarly an attack on one will be an attack on them all. we absolutists & other supporters of the Right to Arms speak loudly of the dangers of the "living constitution" idea. But it's not just so we can protect our precious Arms form government intrusion - it's so that we can stave off an attack on all the Rights acknowledged by our controlling document.

Oops, posted that before I finished. Bear with me here and I'll continue.

Actually, maybe my previous post just got lost in the ether.

I originally commented that one of you stated that 2nd amendment supporters don't want guns in the hands of criminals or mentally incompetent people. But, let's look at the gun market to understand how these prohibited purchasers get the guns in the first place.

A manufacturer makes a gun, then sells it to a distributor or federally licensed gun dealer. What happens then?

If all guns come to market via licensed dealers, how come so many of them end up in the wrong hands?

They're either stolen from distributors, manufacturers and dealers, or are sold to criminals illegally by dealers (straw purchases), or criminals and nutsos purchase them at gun shows.

So, the same people who claim to want to keep guns out of the hands of criminals, do in fact, arm those criminals. Hmmm. Creates a market for their products among the so-called "law-abiding" citizens. Arm the truly dangerous, then turn around and scare the populace by telling them the criminals are armed and they need guns to defend themselves. Nice business model.

So, for those of you concerned about the safety of your fellow Americans, how do you 1. justify not even considering closing the gunshow loophole, 2. taking away the money and powers of the BATFE to punish the bad dealers who violate the law and give the good ones a bad name, 3. proudly kill an amendment that would have made it illegal for people on the terrorist watch list to purchase firearms in America?

How do any of the above take away your right to own firearms?

Extremists on the pro-gun side (which is not all of you, I know that) remind me of extremists on both sides of the abortion issue. I'm pro-choice, but I don't have a problem with outlawing late term abortion (except in cases where the mother's life is at risk); I am pro-choice but that doesn't mean I like or am comfortable with abortion. I personally think the focus on the existence of Roe v. Wade is a distraction from the real work in this country. We should be focused on preventing unwanted pregnancy, and helping those who find themselves in that position to find a life-affirming solution. We all know that all the screeching on both sides is really about garnering money and support among their bases on both sides. Neither could really give a damn about the lives of women and children in this country. It's all about the money and political power.

All right, enough from me.

Looking forward to your posts.

Lindsay

The gun show loophole? I'm going to need some explanation for this, as I've heard a lot of blathering about how bad it is and not enough explaining what it is. The last time I bought a gun at a gun show, I had to have a background check just like I did when I bought my pistol from my local gun store.

Any licensed dealer at a gunshow has to perform thesame checks as if he/she were conducting the transacrion in his/her store. The "loophole" is simply non dealers selling firearms w/o doing a background check. Keep in mind some states already have a law prohibiting free commerce at gunshows. It's no "loophole", especially when the feds haven't th constitutional authority to require gun dealers to do background checks in the first place.

So I justify not closing it by pointing out it's not a loophole & that government permission should not be required to purchase arms period.

A straw purchase is simply someone buying a gun for someone else. Under certain circumstances it's illegal. Very few folks walk in & state they're buying a firearm for someone who can't pass the unconstitutional background check, so saying its the dealers crime is more or less blaming them for not being physic.

But criminals steal firearms. & there's a very lucrative black market in both stolen & imported arms. Only a small percentage of crimils get their arms through straw purchases or private sales at gun shows. Course the newspapers & anti-gun/pro-urderer groups don't say it, but look at any reports or studies done by government agencies & you'll see it's not as big a problem as you've been lead to believe (straw purchases & gun show transactions that is).

Now I justify not giving the ATFU any more cash or power very simply - they're a lot of incompetent oafs who make their living enforcing unconstitutional laws. They'd like to either kill me or throw e in jail (or folks like me) despite my lack of harmful intent. Giving them more of anything to help their cause would be as benefecial to me as giving a hangman who intends to hang me a better quality rope.

The terrorist watch list thing - ever heard of a phrase stating that we should presume innocence until guilt is proven? What you're saying is we should deny arms to folks whom have not been convicted or in many cases even indicted of a crime. The gov (the same fine folks who brought you the DMV) is supposed to have that kind of power; to punish someone w/o even having to prove anything aside from them being on one of their lists? May heaven forbid such.

Now as to how the above harms me - 1: background checks could wrongfully deny me arms when I' in need ( the "instant" check can take up to 3 days which is more than enough time for someone to har me) 2: The ATFU puts folks like me in jail for merely possessing an item, in many cases said item isn't even illegal according to their unconstitutional dictates. They've killed over tax matters involving less than $200 & I have no doubt that if we give them more money & more power they'll grow proportionately disrespective of our Rights, lives & property. 3: Tell me, what if I ticked off a senator because he was anti-gun & he decided to place e on a "terrorist warch list"? Or what if someone just confused my nae with someone else's? Now suppose that either of the two happened, all my ars were stolen, my life was threatened & the cops told me I was on my own (which they usually do)? My buying a firearm through a licensed dealer would not be possible if that monstrosity had been passed.

Now amongst any august body of gun owners I admit that I'd be viewed as extreme. Hell, I won't join the NRA cause they support too much gun control. But the problem we face is not one of too uch extremism, but too much moderation. The 2nd amendment is pretty damn clear. We stared out with an enumerated Right that was absolute. Through moderation we've lost a good portion of it (in the goverments eyes at least) & moderation will be the ultimate downfall of gun owners. When you start out with 100 & the other side wants your 100 you don'tdo a damn thing good by giving the 50. That's exactly what we've been doing.

So tell me, since you claim to be moderate, how would any of the proposals you seem to espouse keep a bad government from using those proposals to vuild things up ultimately to confiscation? How would they not be another step down a very slippery slope? & since criminals by their very nature don't obey laws, how effective do you think your proposals would be at achieving what I assume to be your goals (less crime)?

Brian: You know as well as I do that one of the attractions of gun shows is the unlicensed sellers who aren't required to conduct background checks. Add the Internet and newspapers and magazines, and there's plenty of ways for prohibited purchasers to get guns.

As a law-abiding gun owner who voluntarily undergoes background checks, why do you defend those who don't?

Publicola--I find it difficult to respond to you when you simultaneously claim the government has no constitutional right to require background checks, among other things, and then cite government studies to support your contention that there are few straw purchases or illegal sales of guns at gun shows! Can you really have it both ways?

Do you only recognize laws that are convenient to you, but claim all others are unconstitutional? An interesting but anarchical take on this country that I would suppose you hold very dear.