Posted on 08/23/2007 12:31:23 PM PDT by tpaine
The Second Amendment as a Window on the Framers' Worldview
(Glenn Harlan Reynolds)
I won't waste readers' time by revisiting the points offered by my coauthors here: I too find it beneficial to teach the Second Amendment as a way of focusing on the Constitution without dwelling on what the Court said about it last week or last year, and of addressing a subject that is of considerable popular interest. Instead, I'd like to talk about some things I do that are different.
I teach the Second Amendment as part of a fairly typical "Bill of Rights" course in constitutional law. The course traditionally emphasizes First Amendment free speech and press, free exercise, and establishment clause issues, as well as rights to privacy and equal protection. I devote three or four class sessions to the Second Amendment, and assign excerpts from historical and legal commentary, as well as the leading federal cases of United States v. Cruikshank, Presser v. Illinois, and United States v. Miller. I also assign two leading cases decided under the Tennessee Constitution's right-to-bear-arms clause, Aymette v. State and Andrews v. State, because the Aymette case was relied on by the U.S. Supreme Court in Miller, and the Andrews case answers some questions that Aymette (and Miller) leave open. (I admit, I also do it because I think that state constitutional law is an underemphasized subject in law school curricula, and this gives me an excuse to sneak some in camouflaged as local color.)
One of the major themes I emphasize in teaching constitutional law is the difference between the Framers' whiggish suspicion of powerful elites (both governmental and nongovernmental) and the much more favorable view of elites that has characterized American constitutional thought since World War One. The Second Amendment provides an excellent tool for examining this issue because it embodies the Framers' suspicion of elites in the most inescapable of ways, by proposing that it is necessary for the body of the people to be armed against governmental power that might be deployed against the interest of the people.
This division of power not only within the federal government, but also among the federal government, the states, and the people -- with the armed populace serving as an ultimate check against tyranny -- strikes a dissonant note when set beside contemporary European-influenced ideas of government and society.
I find that a useful point. An important aspect of teaching the Second Amendment in class is that it tends to upset preconceptions, and to cause students to revisit things that "everyone knows." Many come to law school from undergraduate political science courses that seem to teach the federal constitution as a gloss on Max Weber, with any difference between the two to be resolved in Weber's favor.
To see that the Framers very arguably rejected as basic a Weberian notion as the state's monopoly on legitimate violence encourages students to recognize what I regard as an important point in teaching constitutional law:
that the Framers weren't late-twentieth-century Americans (much less late-twentieth-century Europeans) and that their political philosophy and worldview were in many ways very different.
This realization is every bit as difficult for Borkian conservatives as traditional liberals to accept, though naturally the Second Amendment engages them in different ways. This is made more striking through the use of the Tennessee cases. Discussion of the Second Amendment and the role of an armed populace as a check on potential tyranny inevitably produces discussion about whether -- and if so when -- armed revolution is appropriate. Tennessee's constitution, unlike the federal constitution, specifically addresses this question in two provisions, which we also study:
Art. I sec. I: That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.
Art. I sec. 2: That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
The Tennessee courts have interpreted these provisions as having real significance, using them as the underpinning of a right of privacy that has resulted in striking down the state's sodomy law, recognizing a man's right not to be forced into parenthood, and so on.
The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation.
Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy merely because such practices cause (in Bork's words) "moral anguish" among the electorate.
The connection between these two provides a good deal of interesting class discussion, and serves to confound the usual, sterile "liberal vs. conservative" split in constitutional debate. It brings home the point that the Framers were neither liberal nor conservative in modern terms, but rather a peculiar sort of traditionalist quasi-libertarian that has no real modern analog. And -- as is all too often forgotten -- they were a bunch of revolutionaries, not a collection of conventional-wisdom-spouting graybeards.
Thus, to the extent that one cares about how the Framers viewed things, one must look at the world in a different way than television shows like "Crossfire" tend to encourage.
“No free man shall ever be debarred the use of arms.” ~Thomas Jefferson, 1776
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe.”
~Noah Webster, 1787
“To disarm the people is the best and most effectual way to enslave them.”
“What is the militia? It is the whole people, except for a few public officials.”
~George Mason, 1788
“The said Constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms.” ~Samuel Adams, 1788
“The militia is our ultimate safety. We can have no security without it. The great object is that every man be armed.”
~Patrick Henry
PING!
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Best regards,
It didn't pass. In fact it wasn't even introduced.
The Constitutional Convention of 1787 passed to Congress and the states a document without any amendments. The first 10 amendments to the Constitution came after ratification when the anti-Federalists objected to certain things that they believed had been left out. Congress passed 11 of Madison's 12 amendment proposals to the states for ratification in 1789. Ten of those 11 got in immediately. In 1992, the 11th proposal got its 38th ratification vote and entered the Constitution as the 27th Amendment.
Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783.
In 1787 those same States ratified a Constitution that limited their powers which by 1791 included the BOR's.
There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way.
Nonsense. State police powers was then [and still is], one of our most contended issues.
Regulating morals was a power reserved to the States.
Regulating criminal actions was a power reserved to the States, limited by due process in the writing and enforcement of constitutional laws.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Nor would it have passed if anyone suggested that State/local gov't could ignore the 2nd, prohibiting the owning/carrying of arms, - as they do to this day, - using the theory of 'states rights'. - A theory you are endorsing.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Think it thru yourself. We have prohibitive 'laws' on guns in many areas of the USA because States think they have the power to ignore due process.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
Frankly, thats a classical example of straw man bull. My moral standards entail enforcing the Constitution as written, as our supreme law on prohibitive infringements. -- You are advocating standards that allow States to ignore that supreme Law of the Land.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court.
State legislators are required by oath to support the US Constitution, "-- any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"
At least if you care at all about what the Framers intended.
The intent is clear. Prohibitions on life, liberty or property was not a power reserved to the States.
BTTT
If you want to be viewed with suspicion by the state, just start quoting the founding fathers.
They were only 3/5 of human for purposes of Congressional representation. (Besides it was slaves, not blacks, free blacks, few though they were, counted as a whole person). For other purposes, the slaves were not citizens at all, just property.) This was actuallly a compromise. Understandibly the southern states wanted them counted as whole persons, so they woudl have more Congessmen. The north wanted them not counted at all, as (most) Indians were not counted. Why they didn't end up with 1/2 rather than 3/5, I don't know.
The preamble to the Bill of Rights itself reflects the true situation. Yes the Constitution was passed without the BoR amendments. But passage of a BoR was promised, and it without that promise some more states likely would not have ratified the Constitution proper, as in fact some did not. One state, Rhode Island, did not even sign the Constitution. Only Alexander Hamiliton signed from New York, and he was not the entire delegation to the Convention. Two states, Rhode Island and North Caroline did not ratify it until after it went into efect and Congress had already met under it. In the case of Rhode Island it was over a year after the Federal Government was operating under the Constitution, and even then the vote was close 34-32.
BTW, all 12 amendments were sent to the states. One was never ratified and another, the second article, as you state, became the 27th amendment
Here a link to the orginal document from Congress.
I'm always surprised how 'suspicious' some FReepers are of those same views.
Not really. The whole 3/5ths thing is badly misunderstood by peole who use it as a catchphrase. It was simply a compromise about how power was to be distrubuted. Since the census to decide how Congressional seats would be based on total population, not just voters (adult males, and often only property owners), it was the slave states that wanted slaves counted as a whole person, which would give them more seats. It was the northern states that didn't want slaves counted at all, which would of course give them more power. The 3/5 number was simply a practical compromise and had nothing to do with whether they were considered human beings. If it did, it would have been the southern states that would have not wanted them counted, and the northern states that did. Nor did the fact that they couldn't vote make them considered less "human beings". As noted, neither women or children, and often non-owners of property could vote, and nobody suggested they were not human beings.
Your 10th amendment argument is based on the correct proposition that the 10th amendemnt states that some things are prohibited to the states under the Constitution. But you did not understand the distinction I drew in this regard between the following two cases:
1. State actions where the Constitution specifically addresses the propriety of State laws. For example, the second amendment. Where the Constitution actually contains language that prohibits action to the states (such as the second amendment), clearly the States cannot engage in that behavior. So your conclusion that somehow I think that the second amendment is not applicable to the states was not correct.
2. State actions on morals type of issues where the Constitution has no specific language dealing with such issues. E.G. prostitution and sodomy. Unlike the RKBA, there is no "sodomy clause" in the Constitution.
You believe the "sodomy clause" may be divined from the due process provisions of the BOR because you believe the due process clause has a substantive effect on what acts a state can make illegal or legal--a proposition for which there is little or no historic support. In fact, "substantive due process" is an entirely discredited Constitutional doctrine on both the right and the left partly because it has no historic basis at all. OTOH, I believe that the due process clause was directed to getting a fair hearing (fair process)--not to the substantive crime under which one is tried.
In addition, I mentioned that all states had strict morals laws on their books at the time of the Constitutional Convention and that none of the Framers ever suggested that the Constitution made those laws unconstitutional. Your response was that the Bill of Rights was not ratified until 1791. While true, that's not responsive. The morals laws continued on the books of the states and continued to be enforced (prostitution to this day) for more than a century after 1791. Until the moral libertarian breakout of the 60's, it never occurred to anyone, let alone the founding fathers, that laws against prostitution by the States were swept into the due process clause.
I challenge you to cite one instance of one framer of the constitution, before, after, or in 1791, who stated that the almost universal State laws against sodomy or prostitution by the States were made unconstitutional by the Constitution or the BOR. As far as I know, no Framer ever made such a breathtaking statement. Were you correct about the Framer's intent in this regard, don't you think this issue would have come up even once given that such laws existed, and continued to exist and be enforced in every State?
The real difficulty with your position is that, unless the Constitution actually says something about the prohibition on the States (as in the Second Amendment), there is no standard, other than the personal inclination of the judge, by which to determine whether a particular state crime is or is not superseded by the Constitution. Anyone who can look at the due process clause and decide that it prohibits State laws against prostitution but not State laws against assault (both of which involve moral judgments about the prohibited action) is using a divining rod. For one, there is no principled standard by which to make distinctions between the moral judgment made by the State legislatures about sodomy, on the one hand, and assault, on the other, that is grounded in the Constitution. As a result, the judge ends up imposing his moral standards on 50 states because, well, he thinks they are good morals. For two, the due process clause regulates the process by which a person is convicted of a crime. Not the crime itself. So it is irrelevant to the result you want.
I know it is uncomfortable; but you are engaging in the same judicial reasoning process as did Justice William Douglas. He did it with emanations and penumbras of the Bill of Rights. You do it with the due process clause. Both of you believe that you can see things in the Constitution that are not explicitly there. But you believe in them so strongly that you find them anyway. Nothing good comes out of that approach to Constitutional interpretation. The only result is a judicial monarchy.
You replied: "I'm always surprised how 'suspicious' some FReepers are of those same views."
This would be a great argument for your position were there any quotations from the founding fathers to the effect that because of the Constitution and BOR, the States had lost the right to regulate moral issues like sodomy and prostitution. Quote them and make me uncomfortable.
Democratic lawmakers praised the Mayor's push for gun control. "It would be great if Mayor Giuliani could become the point Republican pushing comprehensive gun control legislation," said Representative Charles E. Schumer, the Brooklyn Democrat who is the leading proponent of handgun control in the House of Representatives.
A liberal bully President Giuliani and Chuckie Schumer will have LOTS of chances to work together in a bi-partisan manner.
The more I read about the things that he’s said, the more I come to believe that the Dems did us a favor by Borking Bork.
Regulating criminal actions was a power reserved to the States, limited by due process in the writing and enforcement of constitutional laws.
I'm always surprised how 'suspicious' some FReepers are of those same views.
This would be a great argument for your position were there any quotations from the founding fathers to the effect that because of the Constitution and BOR, the States had lost the right to regulate moral issues like sodomy and prostitution.
My position is [as you could read above] that States can regulate criminal aspects of 'sins' like prostitution/gambling/etc, -- They have never lost that power.
Quote them and make me uncomfortable.
Quotations from the founding fathers to the effect are not available, because above all, - they were politicians, -- and had to cater to the 'moral majoritarians' of their day. -- Just as politicians cater to the communitarian 'majority rulers' [like you] of today.
He still has his advocates, as we see.
Baffles me how these quasi- Borkians can claim States have a power to prohibit dangerous items of property, and activities.. And then when States use the concept to prohibit 'dangerous' guns, - act surprised.
At least Bork was an honest foe of 'unregulated guns'.
How droll. Your 'new start' is the longest post yet.
I think you want to start over to avoid addressing the points I made in my last post.
Your 10th amendment argument is based on the correct proposition that the 10th amendemnt states that some things are prohibited to the states under the Constitution. But you did not understand the distinction I drew in this regard between the following two cases: 1. State actions where the Constitution specifically addresses the propriety of State laws. For example, the second amendment. Where the Constitution actually contains language that prohibits action to the states (such as the second amendment), clearly the States cannot engage in that behavior. So your conclusion that somehow I think that the second amendment is not applicable to the states was not correct. 2. State actions on morals type of issues where the Constitution has no specific language dealing with such issues. E.G. prostitution and sodomy. Unlike the RKBA, there is no "sodomy clause" in the Constitution. You believe the "sodomy clause" may be divined from the due process provisions of the BOR because you believe the due process clause has a substantive effect on what acts a state can make illegal or legal--a proposition for which there is little or no historic support. In fact, "substantive due process" is an entirely discredited Constitutional doctrine on both the right and the left partly because it has no historic basis at all. OTOH, I believe that the due process clause was directed to getting a fair hearing (fair process)--not to the substantive crime under which one is tried.
Due process must be used in the writing of Constitutional law, as well as in the enforcement of that law. Legislators in the USA are obligated by oath to write only constitutional regulations regarding our lives, liberties or properties. -- They cannot prohibit acts [or items of property], just because the are morally offended by the act, or imagine that the item is 'too dangerous' to possess. -- Prohibitions can only be enacted by Amendment.
In addition, I mentioned that all states had strict morals laws on their books at the time of the Constitutional Convention and that none of the Framers ever suggested that the Constitution made those laws unconstitutional. Your response was that the Bill of Rights was not ratified until 1791. While true, that's not responsive.
You mean you didn't like the answer, and have no response in turn. - Tough.
The morals laws continued on the books of the states and continued to be enforced (prostitution to this day) for more than a century after 1791.
Prostitution is Constitutional everywhere in the USA. States have various regulations on its criminal aspects.
Until the moral libertarian breakout of the 60's, it never occurred to anyone, let alone the founding fathers, that laws against prostitution by the States were swept into the due process clause. I challenge you to cite one instance of one framer of the constitution, before, after, or in 1791, who stated that the almost universal State laws against sodomy or prostitution by the States were made unconstitutional by the Constitution or the BOR. As far as I know, no Framer ever made such a breathtaking statement. Were you correct about the Framer's intent in this regard, don't you think this issue would have come up even once given that such laws existed, and continued to exist and be enforced in every State?
Politicians try not to slit their own throats. -- We are still, -in effect-, operating under the 'victorian compromise' in regard to prostitution, etc. --- Laws prohibiting 'sins' are on the books, but rarely enforced. -- We ignore them, -- which gives our socialistic/communitarian factions much comfort. -- They in turn ignore our right to own and carry arms.
The real difficulty with your position is that, unless the Constitution actually says something about the prohibition on the States (as in the Second Amendment), there is no standard, other than the personal inclination of the judge, by which to determine whether a particular state crime is or is not superseded by the Constitution. Anyone who can look at the due process clause and decide that it prohibits State laws against prostitution but not State laws against assault (both of which involve moral judgments about the prohibited action) is using a divining rod. For one, there is no principled standard by which to make distinctions between the moral judgment made by the State legislatures about sodomy, on the one hand, and assault, on the other, that is grounded in the Constitution. As a result, the judge ends up imposing his moral standards on 50 states because, well, he thinks they are good morals. For two, the due process clause regulates the process by which a person is convicted of a crime. Not the crime itself. So it is irrelevant to the result you want. I know it is uncomfortable; but you are engaging in the same judicial reasoning process as did Justice William Douglas.
Sigh, straw man, - again.
He did it with emanations and penumbras of the Bill of Rights. You do it with the due process clause.
You disagree with the constitutional fact that legislators must use due process in the writing of enforceable law. -- You see emanations/penumbras that we can just trust them to comply with our Law of the Land. [You Borkians believe in them so strongly that you find them anyway.]
Both of you believe that you can see things in the Constitution that are not explicitly there. But you believe in them so strongly that you find them anyway. Nothing good comes out of that approach to Constitutional interpretation. The only result is a judicial monarchy.
Give up the hype. I don't advocate "judicial monarchy" in any way, shape, or form.
I knew if I pushed long enough, we would get to the core of things. And there it is. Your position is that the Founding Fathers secretly thought laws against Sodomy and Prostitution were unconstitutional. But they all remained silent because of the then, 'moral majority.' So they slipped a secret but sacred constitutional right of sodomy and prostitution into the due process clause, which took us 200 years to discover.
Aside from the fact this argument is silly, there is a more profound difficulty. They didn't believe sodomy ought to be legal. Thomas Jefferson advocated castration for sodomy. George Washington dismissed soldiers from the continental army for the the "abhorrent" and "detestable" crime of sodomy. And James Wilson, both a signer of the Declaration and the Constitution and one of the original Justices of the Supreme Court, wrote a commentary on American law. James Wilson, 2 THE WORKS OF JAMES WILSON (1967) (from lectures given in 1790 and 1791). When the subject turned to sodomy, Wilson refused even to discuss the details of the act: "The crime not to be named [sodomy], I pass in a total silence." ID. at 656.
So there you have it. Thomas Jefferson, George Washington and James Wilson, neo-Borkians and moral majoritarians.
If you want to argue that we should have a living constitution and that you ought to be able to decide what new rights should be included, at least that's an honest (if bad) argument. Instead you cloak your arguments in fanciful assertions about the original intent of the Founding Fathers that are, frankly, laughable.
That you have been reduced to arguing a secret plot by the Framers to legalize sodomy, which of course, they told noone about (because it was a secret--shhhhh!), illustrates the weakness of your argument--especially when the few public statements they made on the topic are directly contrary to your position.
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