i love it when you write this kind of stuff—i am so right there with you.  the problem is that—i think—those people who want their FEELINGS AND RELIGIOUS BELIEFS part of the law, don’t give a good dump about the constitution and reason—it’s all about how they FEEL about it.  you, know—they “DON’T BELIEVE IN IT.  IT’S JUST NOT RIGHT.” GAH.

Well my dear this is what happens when you listen to NPR.  Nothing but erudite discourse on the Constitution which is of great benenfit to those of us who are much too lazy to look up all those wonderful specific references.  Most of the time the best I can come up with is, “NU HUH you bonehead go read the Constitution it doesn’t say that!”

A few disconnected points:

1) The assault-weapons ban is a bit obsolete in that there are guns that don’t fall under its purview that are nonetheless more destructive than ones that do. It doesn’t serve its purpose, so I think it should go.

2) You said, “The Constitution is supposed to be a living document”. There are gazillions of people (including Justice Scalia) that would disagree with that. Decriminalizing sodomy is a “living document” idea. “Arms”, I think, would apply equally to machetes, handguns, and phasers, and so, doesn’t fall under the same argument realm.

3) That whole 14th amendment thing is a bitch, ain’t it? On one hand, we ignore it when states regulate gun ownership (something liberals love). On the other, we try to force a separation of church and state by holding states to the first amendment (something that liberals love).

Holy Moly. I feel an overwhelming desire to impress you right now, but after absorbing all that the only insght I can manage is…

GUH.

I think I may have strained something.

Gopi, you make some cogent points.  As for the first, are you suggesting that no regulation should be imposed (all regulation should be lifted), or that better legislation be drafted? 

As far as “strict construction” goes, it flies in the face of close to 200 years of jurisprudence.  If we espouse it, we must retreat from, for example, most all federal commerce legislation, including anti-narcotics trafficking laws and RICO prosecutions.  Really, it would require that slavery be re-instituted and contrary amendments be rendered nugatory.  Rather than rejecting pretty much our entire jurisprudential history, the phenomenon of amending the Constitution suggests strongly to me that the framers considered it a starting point, not an ending point.  And as Marshall said in the most important case the Supreme Court ever decided, it is the province of the court to say what the law is. 

It seems to me that the framers did not contemplate private ownership of cannon and warships, just as even the NRA does not officially endorse private ownership of rocket-propelled grenades and bazookas.  A strict construction interpretation of the 2nd amendment that’s intellectually honest would limit the scope of that right to the weapons in the framers’ contemplation at the time the second amendment was drafted.  If we can expand the range of permissible weapons, there is no reason basis to restrict the range of permissible marriages. 

Finally, as for the 14th amendment, you’re right, using it to restrict the actions of the several states is structurally troublesome - but I think it’s worth the trouble.  Neither the right to free speech nor the right to bear arms were ever seen as absolute; the federal power to restrict such activity properly devolves on states as well - as do the limits on that power. However, states often impose restrictions more strict than the federal standard - I’m not sure how they get away with that… so for me it’s a problem in the application, not in the principal.

I’m torn on the issue of gun regulation.

The Militia Act pretty much allows (almost requires) people to buy the same weapons as the military. There’s talk of caliber sizes and stuff in there. The 2nd amendment has none of that. But other literature from the period clearly gives the original intent for the amendment as preventing a state monopoly on arms, and hence preventing tyranny. So yeah, I disagree with you on what an originalist would allow. (IANAL, so I could be totally wrong, though.)

Yet, I don’t like the idea of another Ruby Ridge, but with tactical nukes instead.

Furthermore with originalism, re-interpreting the Constitution is getting kind of extreme, and the 14th amendment isn’t helping original intent. Where local control was desired (such as the Establishment clause of the 1st amendment), the 14th amendment takes it away.

But my main problem is what kind of regulation actually passes even strict constitutionality tests. I’ve written about this before.

Even though I consider myself a libertarian and not a Conservative, I am rather conservative when it comes to Constitutional issues and change.

Dan, I think I like you more when you’re worked up. I’d love to see you in a court room. Moreso, I’d love to see you in a court room with the lawyers fighting in san Francisco to legalize gay marriage. I like the way you think, my friend.

I can’t really comment on the whole gun control thing. I have a conflict of interest. I’m a card-carrying member of the ACLU, a lesbian, and a die-hard Democrat. That in itself should tell you where I stand.

But.

My father’s business is guns. He’s a manufacturer’s rep for several large gun companies - hence the fence lodged up my ass. I am for controlling the guns, but when the laws are passed doing so, I see my father’s business and livelihood plummet. It’s a tough call for me.

The original intent was to create a popular militia which could defend the country.  The limitation on gun controls was only effective on the federal government; it was anticipated that local jurisdictions would impose whatever measures they deemed fit in the interest of public protection.  Looking at some ussc cases from the late 19th century, the principal of states having the right to control firearms possession and use was unquestioned - it’s not even part of the discussion, no one bothered to raise the point.  The old west was considered lawless in part because the only law was federal law which at the time was almost no law at all, in distinction to the local regulations that governed and civilized incorporated and state lands. 

It was clear that the “well-regulated” militia referenced in the 2nd amendment meant a militia that was under local control.  That kind of qualifying language is very rare in the constitution.  It’s true that there was debate at the time and more restrictive language was rejected, just as it’s true that these militias were also considered insurance against a government run amok - but it was still well-understood that these militias would train and organize with sufficient coordination to enable the government, if needed and if appropriate, to call on them at a moment’s notice.  At the same time, state limitations on firearms possession were commonplace and unquestioned. They just didn’t have a major impact because weapons with the awesome destructive capacity of today’s assault weapons didn’t exist. 

I support the right to bear arms; I believe it to be a founding tenet of this country and potentially effective in preserving life and liberty.  But guns are very dangerous and the state is wise to regulate their distribution and manufacture.  Guns don’t kill people - bullets kill people.  Or, alternatively, trauma and blood loss. 

The thing about original intent is that it is in itself a matter of interpretation.  Better, I think, to try to conceive of the right being enumerated, why it was being created and under what conditions, and then take the logic of that argument and translate it through the intervening 200 years of history to circumstances today.  Of course it’s a total artifice, but at least it’s honest about it.  Original intent is just as slippery an eel as any other in the tank. 

But my point is this: if you pick an eel, stick with it. You want to expand the definition of legal firearms from the crude muskets of 1790 to rapidfire ceramic handguns?  Then you have no basis to restrict the right to get married.  They’re both considered fundamental constitutional rights and should be interpreted on the same analytical lines.  If you think they’d have approved of one given circumstances today, you really can’t maintain that they would not have approved the other.  You might think so but there is no proof either way and the distinction ultimately must be seen as arbitrary: we are saying that they would have thought one was bad and the other, good.  But we don’t actually know.  They didn’t say.  And if they were here today, in a world more different than theirs 200 years ago than ever any two worlds 200 years apart have been, we have no idea how they’d see these modern wonders.  Fifty-six men signed the declaration of independence.  Odds are at least one of them was gay.

One more point of disagreement: I don’t think that the justification clause is anything but a sufficient condition for needing the 2nd amendment. Because I don’t think it’s a necessary condition, I don’t think it needs to be enforced (i.e., only militia members should carry arms or other restrictions).

I do think that the assault-weapons ban should go, and I do think that gay people should be allowed to marry. But I came to those conclusions through entirely separate thought-processes; I disagree with you that they are even analytically related.

these are certainly matters on which reasonable minds can differ.  To the extent you’ve described your logic and thinking, I understand where you are coming from and where you are going.  I just disagree with soem of your premises and some of your conclusions.  It makes the law a lively subject for those who attend to it.  But for purposes of clarity, I don’t think that only militia members should be allowed to have guns - just that the armed citizenry is the means by which we avoid maintaining a standing army, which is the tyrant’s main tool.  However, the tradeoff is that the nation has the right to call on the armed citizens for national protection, and for that reason, must be able to regulate them.  I’m not expecting to convince you of my interpretation, but I want to make sure I’ve articulated it clearly enough for you to disagree with what I meant to say.

Gopi, Dan....thank you for one of the most interesting, articulate and educational discussions I’ve had the pleasure to experience in a very long time!

I also want to thank you for the extensive articulation of your positions.  I know very clearly where I stand on these issues (guns no/gays yes) and while I could back up both of those positions with explanation, logic and precedent, I’d much rather let you do it, because I’m tired and Queer Eye is on.

Murry and I were talking about this at the beach.  First we came to the conclusion that our founding fathers did not have to contend with young nubile girls in bikinis, otherwise the Constitution would never have been written.  Here are some of Murry’s comments, sorry if he gets a little wordy:
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.

Seems pretty damn clear to me what Congress was thinking. Read the history of the Bill of Rights and you’ll find that the amendment was specifically passed because the U.S. HAD NO STANDING ARMY! Armies were expensive to raise and maintain, so Congress went the way of the militia instead (a concept, by the way, alive and well today - seeing as Bush has just called up about 5600 inactive ready reservists).

Now, your theory about them wanting to let the people keep guns to be able to resist the tyrannical government is a little confused. The Constitution was written 10 years after the Articles of Confederation werewritten and 4 years after the end of the Revolution. The Bill of Rights (with the 2nd Amendment) didn’t come into effect until another 4 years had passed (1791 to be exact). The Constitution was written because the Articles were not sufficient enough to keep the new nation intact. To wit: they provided for a weak government, when a stronger one was called for. So, they created a stronger government through the Constitution. To think that the Framers wanted to codify a law that would significantly weaken the new strong government they were creating is ridiculous.

The origins of your theory are in the writings of Thomas Jefferson. He was afraid of a tyrannical government and even said something to the effect that it would be a good idea for the people to rise up in revolt every generation or so. Tommy Boy was in a decided minority on this point. He was also, by the way, not a particularly big fan of democracy as we practice it and was against universal suffrage (he preferred to keep the vote in the hands of the landed gentry, even if they were like him and spent their entire lives mired in debt). Tommy was also avidly against all forms of organized religion. It cracks me up the the religious zealots of the far Right use Tommy’s writings to justify some of their arguments.
...and why the argument that it was passed to enable the people to protect themselves against the national government is hogwash. As you know, the first 10 amendments to the Constitution are called the Bill of Rights. To understand the true purpose behind the 2nd Amendment, you have to understand the debate surrounding the ratification of the Bill of Rights and the Constitution itself.

As I explained in yesterday’s email, the Constitution was wrtwrittencause many of the Founding Fathers (especially James Madison) felt that the Articles of Confederation didn’t provide for a strong enough central government. They wanted a stronger government, with powers over the individual States, because they thought this was the only way the new Republic could survive. These guys were called Federalists. Their oppopponents Congress (primarily from the South, but also N.Y.) were for stronger individual States and a weak central government. They were called anti-Federalists (for obvious reasons).

These anti-Federalists were against the Constitution for the very same reason the Federalists were for it. During the State ratifying conventions, they began calling for a Bill of Rights. They claimed they needed one to limit the powers of the federal government. What they really wanted, however, was to attach so many amendments (most of these guys were calling for 20-40 amendments for their Bills of Rights) to the Constitution that the document would not get ratified (in which case they would force another convention and draft a new document more to their liking).

But Madison and the Federalists outsmarted them. Madison proposed 10 amendments to the Constitution that he knew his fellow Federalists (who dominated the State legislatures at the time) and most of the moderate anti-FeFederalistould support. He did this reluctantly, because he didn’t think the Constitution needed a Bill of Rights. He ignored almost all of the specific demands of the anti-Federalists, and instead proposed amendments that he thought were implicit in the Constitution itself and that would therefore not degrade the power of the government that document created.

In other words, the Bill of Rights was a concession by Madison and his Federalist to the anti-Federalists (who were in the minority everywhere but VA and NY). The fact of the matter is that the Constitution probably would’ve been ratified anyway, but agreeing to the Bill made ratification easier. The key thing to remember is that agreeing to Bill was the only concession Madison made. None of the amendments limited the federal government from doing anything that the Constitution allowed it to do. Madison agreed to them simply because they reassured the anti-Federalists that the government would not degrade into some tyrannical state.

So...we get to the 2nd. It was passed to placate some people who were afraid that the Federal government would try to quash state militias (my argument yesterday may have been a llittleoff base on this point...no matter). Madison had no problem putting the 2nd Amendment in because he didn’t believe the Constitution could be interpreted to give the federal government this power.

That was the only reason the amendment was passed. The argument that it was to enable the people to protect themselves against the government flies in the face of the reality of the day and the single most important event that led to the Constitutional Convention: Shay’s Rebellion. The people were scared to death that more rebellions would rise up (there were actually a lot of them in the years after the Revolution). That’s why they wanted militias: to protect their states and the country itself.

There will be a quiz on this Saturday in the strip bar. No notes