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"Living constitutionalist's" frustration at Heller
Steve Griffin, over at Balkanization.
As near as I can see, in this context his view would amount to "conditions have changed since 1789, and hence the meaning of the bill of rights has changed." NOT just that there are different considerations in trying to establish the limits of the right (which would hardly be controversial, or justify designating a school of thought), but rather rights may vanish (I assume that is his approach) if conditions change in the eyes of the judiciary (again, I'd assume this is his designated decisionmaker).
Wonder why the Framers bothered to establish a way to amend the Constitution,if that is so, and why they put such strict requirements on it? Sounds to me as if they meant it to be a deal that can be changed, not by a majority, but by something approaching a national consensus.
Hmmm... and in this context, wouldn't understanding "the threat guns can pose to police officers" require assessment of the work of various statisticians and criminologists -- John Lott, Gary Kleck, Steve Levitt come to mind, but there are many others -- on guns, gun laws, crime and self defense?
In a way the last hearkens for a return to ... well, it's hard to describe. But essentially days when the Court asssessed rights and their limits with reference to present conditions, but without any real data -- perhaps because it didn't exist, but does in this field. Freedom of speech: "fighting words" can be outlawed because they lead to fisticuffs (but without any empirical evidence that they do so). Porn can be outlawed (with the definition swinging wildly over the years) without any hard evidence that it inflicts harm, let alone that the harm is redressed by this or that definition). Defamation suits can be curtailed in various ways without real evidence that the protection was necessary to avoid chilling speech. I find most of the results made some sense, and at least did no harm, but it's hard to avoid concluding that this was "law office policymaking" rather than "law office history."
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Let's not forget Kelo...Where does it say, "The government shall not take private property...unless it needs more tax revenue."?
of course one way to help save police officers' lives is to allow the public to carry concealed with no restrictions -- that way the police don't even have to deal with a live VCA when responding to a "hot" crime.
further, the person whose life was in danger and was forced to take a life has much greater justification for having to pull the trigger than the officer ever did.
Granted, judges and legislators may be ignorant of statistics. And of course one can find a study to support virtually any position, just as one can find and embrace an opinion on virtually anything. That doesn't mean one is justified in doing so, nor that all studies or opinions are equal. Witticisms aside, as things presently stand, all truths, from propositions about particularities to quantum data reduce to their accordance with statistical probabilities. That is what science and empiricism is all about. Legislators and judges are ignorant of much more than "numbers." Still, we need not rationalize their ignorance, and should we not hold them accountable for basing their work on the best science, whether it be criminology or climatology?
Figures don't lie, but liars figure. A 'consensus' is just a clever way for policymakers to cheat the people out of their freedom just because they can. Fuzzy feel good stuff to base laws on. Global warming or firearms confiscation, it just makes them feel good.
The "best science"?
Mr. Objective, meet Mr. Subjective.
Ah, yes, the "living Constitution." Did anyone else notice that during the debates in 2000 Al Gore said the constitution was a "living, breathing document," then when Florida exploded said, "The Constitution provides a very clear and definitive process for resolution that should be carefully followed."
TRANSLATION: "Inside the Beltway" the lines are tightly drawn between the Executive's, Legislative's and Judiciary's turf. You want to pick a fight? That's how you do it, e.g., Executive Privilege vs. Congressional Oversight. Everyone knows where the lines are drawn and fight for miserably for the angry inch. Meanwhile, back at the ranch, no one is watching out for the 'rights' of the People. Need more power? Take it from them. What are the People going to do about it, anyway? You need the government's permission to sue the government...
Neat trick, huh? Whenever the People's last chance is the SCOTUS, it's an "all-or-nothing" play.
Mr. Subjective: A short memory is your stock in trade. We met a long time ago--as long ago as there has been a species to differentiate us. :=)
Hedwig and the Angry Inch. Now *that's* a movie.
Everybody here missed what I think to be the real issue. The Constitution wasn't written to address "conditions of the then current environment". It was written in response to and in knowledge of human nature. It was written to act as a guarantor of liberty to the citizen and as a fetter on government.
Governments are administered by people, often popular people who have won elections. Yet, governments seek constantly to increase their power and reach into areas of the lives of citizens from which they are prohibited by our constitution. Governments seek this power and usurpation of citizens' rights and their transformation to state powers because they are run by people.
Human nature has not appreciably improved since the Constitution was written. The founders understood the nature of man and wrote the document they wrote to curtail as much of the abuse as was forseeable. They did a Hell of a good job of it.
Mr. Griffin, if that truly is his premise, has committed a knowing intellectual fraud. The conditions being addressed by our founders have not changed since the Garden of Eden, and certainly not since 1789.
If that truly is his position on the issue, he is, himself, part of the proof that man's nature has not improved by this call to reinterpret the constitution to the detriment of individual liberty and citizen rights.
It is also evidence of the shallowness of thought that passes in our society for reason.
I always considered the "relativist" interpretations to be just another way to rationalize what they want to do without appearing to have that pesky constitution get in the way. This is another classic liberal tactic. If the words in the discussion or problem are not favorable to the "cause" then either stigmatize the words, claim them to be obsolete, or just redefine them. The "collectivist" view of the 2A is just another version of the same thing. So is political correctness.
Humpty Dumpty in Alice in Wonderland would be proud of the way they get such use out of words.
i'm a living constitutionalist, and i'm not upset by Heller in the least.
we need a way to amend the constitution because there's only so far we can get with creative reinterpretation of the text that's in there. we can't read black into white entirely; living-document spinning can't contradict the plain meaning of the text. if it could, there'd be no point having a written constitution at all.
(we can argue about how far the text can be reasonably reinterpreted. i would say that the violence that's already been done to the interstate commerce clause is way, way out of line, myself. i'm having trouble seeing the Kelo decision in the constitution, too, but what do i know...)
we need to be able to reinterpret the constitution because the amendment process is deliberately hard --- too hard to effectively keep up with changing times; we can't pass amendments as quickly as needed. besides, the national political debate would be swamped with nothing but arguing about which new amendments were needed; we'd have no time for anything else, like debating which candidate for office might be the best choice.
on top of that, we can't avoid reinterpreting the constitution. we don't have the founders here to ask just what they meant by their language, how it should apply to the problems and issues we have today, and how any given new supreme court case should be decided in that light. what the SCOTUS does all day long is, by and large, reinterpret the constitution as a living document; that's no small part of what they're for. but they can't --- or shouldn't be allowed to, anyway --- go just however far, either.
argh, i forgot to mention how all that ties in with Heller...
Heller will result in the 2nd am. being reinterpreted, one way or another. if D.C. wins (not likely, thank goodness) then it'll be reinterpreted out of existence, possibly worse than any other part of the constitution ever has been. more likely, it'll be reinterpreted as to what "arms" means in order to keep subguns and RPGs off the streets.
if it were taken at plainest face value, i don't see how miniguns, hand grenades, and the like could be outlawed. but if such tools were completely free and unrestrained, then a new constitutional amendment would most certainly be passed to wholly repeal the 2nd, and be ratified in record time. that's not likely to happen, either, because nobody sensible wants to read it that way.
more likely there'll be some reinterpreting done to keep most of the status quo intact, probably overrule some of the worst bans, and (i very much hope) start a legislative debate on what manner of restrictions can be tolerated without another amendment being needed. much like we've long been debating, usually in front of the supremes, what manner of restrictions on speech can pass 1st am. muster. that too is an ongoing process of reinterpreting part of the constitution, and it hasn't made the sky fall so far.
"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
Re Bill: Amen!
Re Nomen Nescio: There are a number of anti-gun assumptions in your argument that need the light of day. 1st - You assume that civilians having mgs, etc. is inherently bad and will lead to increased violence. I beg to differ and there is plenty to support my side. The entire gun ban philosophy has been based on this assumption and at every turn has been proven wrong. (Concealed carry is one example.) 2nd - The argument that a literal interpretation of the 2A would allow everything up to and including nuclear missles (the usual assertion) is also wrong. These are not arms, they are explosive devices - a different animal altogether and one recognized as different by the founding fathers. 3rd- Mgs, miniguns, anti-tank guns, and even 40mm grenades are not all illegal, only newly manufactured ones are. Some states may have gone further. I believe this ban will be another bone of legal contention down the line. 4th- There are certain restraints that can be justified without wholesale redefinition of the 2A. For instance, requiring people to be screened to insure they are not felons - I would think this would not violate the founders historical intent and not require a "living" constitution interpretation. And last but not least, I disagree that allowing automatic weapons would result in an amendment overturning the 2A. I believe there are enough supporters of the above to prevent that. This is also why the amendment process is deliberately difficult. It reduces the tendency to follow the political whims of the current generation and limit a "tyranny of the majority". This is as it should be in my opinion.
Alan, i should have made myself clearer. i, personally, wouldn't much mind MGs being more widely available to civilians (although the notion of RPGs makes me pretty uncomfortable), but i'm in a minority there. among people in general, fully autos are feared, loathed and reviled just about beyond the possibility of overstating the matter.
while you and i might not want to amend the constitution just to make sure the Hughes amendment remains intact, i'm convinced that if it ever came down to that line, such an amendment would pass --- and fast enough to make both our heads spin. that's just how a large majority of the polity views the things, sadly enough.
(on the subject of what we'd consider truly reasonable limits on the right to keep and bear arms, it seems we mostly agree.)
Re Nomen Nescio: "...on top of that, we can't avoid reinterpreting the constitution. we don't have the founders here to ask just what they meant by their language, how it should apply to the problems and issues we have today, and how any given new supreme court case should be decided in that light."...
This is true to a limited extent, however, there are plenty of historical documents which do give what the founders intent was. This does leave the courts to decide how their intent can be applied to today's situations but in my opinion does not give the leeway claimed by the "living" contitutionalists. The arguments from the sides in Heller I believe are a perfect example of this dichotomy.
NN, sorry dude, you are wrong. The amendment process in as difficult as it is in order to prevent a tyranny of the majority against individual rights. If a proposed amendment cannot pass the strict requirements then it most likely is not worthy of inclusion in our constitution. If it is worthy of inclusion it will pass the strict and high hurdles before it. That is the very reason those requirements were made so difficult to satisfy, to weed out the unworthy.
The second point you are wrong on is simply that we know exactly what the founders meant when they wrote the constitution. None of them were shy or reticent about sharing their thoughts about meanings of the various parts of the document. Those writings are ubiquitous and remarkably similar in philosophy. So when we say we can't know what they meant, we lie, because we want them to mean something we like.
As for the argument about what arms were approved by the founders, I have heard it said that only bearable arms by an individual were meant. That is patently false. I have heard it argued as a sop to the antigunners that crew served weapons are not covered by the second amendment. That is patently false.
I direct your attention to Letter of Marque and Reprisal,as provided for in the constitution, wherein "SHIPS OF WAR" were not only recognized as appropriately possessed by private individuals, but were approved as an extension of the reach of government and empowered to act in its interests. Again these were privately owned 'SHIPS OF WAR", cannon and armed crew and all. At the time, the most fearsome weapons on the planet. Our founders had no reservations about them being retained in private hands.
So I believe the above points kill all logical argument about what was meant and what the limits were. All arms were envisioned as appropriate for private ownership and operation.
Any argument past that is simply emotional denial or dishonest.
Straightarrow, i think we're talking past one another. it looks to me like you're speaking of what ideally (in your opinion) should be, whereas i'm more pragmatically talking about what is politically possible today.
in theory, reading the 2nd am. plainly, there shouldn't be any restrictions on arms, of any type. reality check: this country is not now in a political climate to allow that. the founders may have had private warships, and not minded, but you and i are not going to be allowed such. this country, both its government and its people, will do whatever is needed to prevent us from owning them. that's political fact on the ground, whether we like it or not.
that's why i say Heller will result in reinterpreting the 2nd am., no matter how it works out --- the simplest, most straightforward reading is intolerable today, and would likely result in the whole amendment being repealed, if we tried to take it seriously in that meaning. you can call this dishonest if you like --- i call it politics.
The problem with legislating and deciding cases based upon statistics is that so few legislators and judges know anything about them. Most don't know a mean from a median from a standard deviation. That, combined with the fact that you can find a stat or a study from some egg-headed think tank to support any angle you want, leads a rational person to conclude that Mark Twain (allegedly) was onto something when he said that: "There are lies, damn lies, and statistics."
Plus, the statement "the threat guns can pose to police officers" in the end defies any attempt at quantification. Of course guns can pose a threat to police officers. So what? So do donuts and cigarettes. Resorting to numbers to try and determine what, if anything, to do about it is just a parlor game. Empircal "evidence" that guns might only pose a minor threat to police officers will simply result in the "other" side resorting to the tired old saw: "But if it only saves life of one police officer it will be worth it." Thus, in my view, studying the numbers is merely a canard.