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I'm Dreaming of a Libertarian Obama

Jeffrey Rosen pens a short essay in The New Republic arguing that Barack Obama can be, in Rosen's words, "the first civil libertarian president."
After Obama was elected to the Illinois state Senate in 1996, he defended individual rights in a way that might have marginalized him: He joined only two other senators in voting against a bill to forbid convicts on probation from having contact with street gangs, and he voted against a bill to expand the death penalty to gang-related murders. But Obama nevertheless won the respect of police and prosecutors in Chicago by building those "alliances of consent." One of his greatest legislative triumphs was a bill to require the videotaping of all confessions and interrogations in capital cases. Initially, police, state prosecutors, and the newly elected Democratic governor were strongly opposed, some death-penalty abolitionists viewed the bill as too moderate, and legislators were afraid of being soft on crime. But Obama led daily negotiations (without reporters) during which he emphasized his opponents' common values. At the end, the bill had the support of all parties, passed unanimously, and today has been adopted as a model by four states and the District of Columbia.
There's more recent stuff and a hashing-out of how John McCain would attack Obama on this front. Rosen expects Obama to parry better than Dukakis did versus Bush; I agree, and I think the criminal issues that sunk Dukakis have less salience than the war on terror issues that inflame the gonads of the McCain Right. I heard way too many arguments that the PATRIOT Act vote would sink Russ Feingold or the wireless wiretap debate would save Denny Haster's job to take that line too seriously.

But what about those other liberties? Aswini Aburajan reports from Obama's last presser, which came after the NIU killings.
Asked to comment on Cheney's decision to add his signature to a brief supported by 55 senators and 250 congressmen to have the Supreme Court overturn a ban on handguns by the District of Columbia, Obama said he wasn't familiar with the statements made by either the Vice President or members of Congress.

However, he went on to defend the right of municipalities to establish their own handgun laws. "The city of Chicago has gun laws, so does Washington, D.C.," Obama said. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't born out by our constitution." Washington, D.C., Mayor Adrian Fenty is an endorser of Obama.

Asked to elaborate on his understanding of what the second amendment actually means, Obama said that he does believe the second amendment "speaks to an individual's right." But he said that right could be "subject to common-sense regulation just like most of our rights are subject to common-sense regulation. So I think there's a lot of room before you [sic] bumping against a constitutional barrier for us to institute some of the common-sense gun laws."

So: Obama is a civil libertarian, except when he is not.

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Comments to "I'm Dreaming of a Libertarian Obama":

javier | February 15, 2008, 3:58pm | #

i am not a murderer, except when I kill people.

I really don't understand some libertarians fascination with obama. he seems like a social engineer and economic authoritarian like the rest.

Episiarch | February 15, 2008, 3:59pm | #

Obama is a civil libertarian, except when he is not.

Obama is a civil libertarian on the issues that his supporters care about, and not on the issues that his supporters do not care about or actually dislike.

t. j. | February 15, 2008, 4:01pm | #

obama is as libertarian as ron paul is president.

John Thacker | February 15, 2008, 4:04pm | #

Everyone's a libertarian when it comes to stopping government from messing with them, but almost no one is when it comes to stopping government from messing with those people.

I consider it a pretty strong civil liberties violation that Obama is one of the leading sponsors and pushers behind eliminating the secret ballot in union elections. Secret ballots should be a neutral civil liberties issue; unions fought hard to get secret ballots because of employers' retribution. Turning the tables just because it seems like intimidation may be on your side now is too typical.

joe | February 15, 2008, 4:06pm | #

I'm old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

Then again, so is anyone over eight years of age.

Shouldn't you actually accomplish something before you overreach?

whiskey | February 15, 2008, 4:06pm | #

I don't see how "common-sense gun laws" necessarily runs against the Second Amendment. Common-sense, DC's laws surely aren't - the fact that gun bans don't decrease crime means you can't ban guns even under the common-sense standard Obama references - but the idea that guns can't be regulated at all? I mean a government can't ban guns from courthouses? Sure, we wouldn't have AWB II, but still, common-sense regulation that's actually rational not knee-jerk is certainly permissible under the Second Amendment.

I'm not sure I see where concealed carry fits into the Second Amendment either, fwiw.

Having said that, Obama's support for flat-out bans is clearly wrong. I can't see any way that Heller will support a flat-out ban, nor do I see any way that Heller will support an absolute right to firearms. I would predict strict scrutiny, which means that guns are open to regulation, just like everything else in the world.

bookworm | February 15, 2008, 4:14pm | #

A common sense gun law would be to not allow people to have an army tank parked in our driveway or a nuclear bomb in our back yard.

zig zag man | February 15, 2008, 4:16pm | #

"obama is as libertarian as ron paul is president."

Folks, we have a winnar!

/The only place I can see Obama being Libertarian is in the matrix, as Morpheus.

Russ 2000 | February 15, 2008, 4:17pm | #

I'm not sure I see where concealed carry fits into the Second Amendment either, fwiw.

It fits right in there with "shall not be infringed".

Fluffy | February 15, 2008, 4:17pm | #

I really don't understand some libertarians fascination with obama.

For me it begins and ends with transparency.

I consider him economically a wash with the other remaining candidates. McCain hates capitalism, he openly admits it. How am I supposed to trust him on that issue over Obama or Hillary or anyone else?

But Obama has the proper attitude towards transparency, and if he opens the window just a little it may be possible for activism-minded people to burrow their way into all the BS that's been hidden for 7 years and bring the Bush criminals to account.

I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified. Before that can happen, we need to shine sunlight on the federal government again. I don't see a candidate still in the race who can make that happen other than Obama. I'll still almost certainly write in Paul personally, but if Obama wins in November don't expect any tears from me on election day.

Pro Libertate | February 15, 2008, 4:17pm | #

joe,

I don't think so. I've been hearing the argument for years. It's an old debate, and one that really had never coalesced into a Supreme Court opinion until now. It's also been a part of legal scholarship for a long time. Gun ownership used to be nearly ubiquitous, too, so people probably didn't think there was anything to debate.

In any event, I think Obama fails the libertarian test without bringing gun rights into the discussion.

whiskey | February 15, 2008, 4:18pm | #

bookwoorm: neither tanks nor nuclear bombs are arms (how are they borne by a person?), so while it's reasonable, it's not gun law.

bookworm | February 15, 2008, 4:19pm | #

"I really don't understand some libertarians fascination with obama"

We're fascinated with him because he's not John McCain or Hillary Clinton.

Russ 2000 | February 15, 2008, 4:20pm | #

How does banning concealed carry prevent either keeping or bearing arms?

whiskey | February 15, 2008, 4:22pm | #

the perils of filling out forms in haste.

@4:20 is by me, addressed to Russ 2000

Bingo | February 15, 2008, 4:23pm | #

Well if its concealed carry surely it is some form of bearing the arm, no?

joe | February 15, 2008, 4:25pm | #

Russ2000,

In many places, openly carrying a gun is illegal, too.

So, if you can't openly bear arms, and you can't bear concealed arms, that's a bit of a problem for people who want to bear arms, no?

bookworm | February 15, 2008, 4:25pm | #

"I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified."

Fluffy, I hope you also include the Clintons on being held accountable for all their past corruption as well as Bush and his people.

Gus | February 15, 2008, 4:29pm | #

Jeffrey Rosen writes well. Learn from him David. Learn from him.

Thomas Jefferson | February 15, 2008, 4:32pm | #

"the first civil libertarian president."

Dude, wtf?

MP | February 15, 2008, 4:37pm | #

I really don't understand some libertarians fascination with obama.

Best to know as much as one can about our next President.

The Wine Commonsewer | February 15, 2008, 4:40pm | #

......a Libertarian Obama

That's right, in your dreams, baby.

joshua corning | February 15, 2008, 4:40pm | #

I'm old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

Quick everyone lets make a list of individual right that have never been thought of as eccentric!!

Ready? GO!











......

umm ok...how about listing individual right that are popular enough for Obama to support?


(Note: this is what a cyber PWNOWNZ looks like)

T | February 15, 2008, 4:40pm | #

I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified.

Literally? If so, the Romans ain't gonna have a damn thing on you, Fluffster. Fuck the Via Appia, we could probably line both sides of I-95 with crosses based on these criteria.

I, am however, uneasy with your contempt of Congress criteria. I'm openly contemptuous of Congress on a fairly regular basis.

Taktix® | February 15, 2008, 4:41pm | #

As I've said before:

Obama's a relative newcomer to federal government, so he doesn't have years and years of cronies built up, and he likely will have trouble getting his own ideas passed.

Get that? A weak executive. That's the libertarian/pragmatic approach.

That being said, he's still a fucking commie...

Jefferson's Slaves | February 15, 2008, 4:43pm | #

"Dude, wtf?"

Hello!

joe | February 15, 2008, 4:43pm | #

Whatever, corning. You're a legend in your own mind.

bookworm | February 15, 2008, 4:44pm | #

"That being said, he's still a fucking commie..."

But he's a nice one, not an arrogant one like Gore, Kerry, or Hillary.

thedifferentphil | February 15, 2008, 4:44pm | #

"neither tanks nor nuclear bombs are arms (how are they borne by a person?)"

Right. But hand grenades and mustard gas can be carried and common sense has banned them without much 2nd Amendment complaint. So the line to be drawn on what arms can be carried by citizens is political, not written in some sort of constitutional stone. Of course arguing that it is written in stone is a political move, just like "strict constructionism" for judges is a political stategy of constitutional interpretation.

thedifferentphil | February 15, 2008, 4:45pm | #

I lose the thread! I figure the last post is the opposite of "winning the thread" in its unpopularity, but I figure it is based on reason, so...

Nick | February 15, 2008, 4:45pm | #

Sweet fucking Christ, joe, how many times today are you going to say something that makes perfect sense? I'm starting to wonder if you are becoming a libertarian by hanging out here so much, or if someone has stolen your identity.

How's that for a backhanded compliment?

Nick | February 15, 2008, 4:47pm | #

joe, I was referring to your 4:25. Don't misinterpret the praise.

The Wine Commonsewer | February 15, 2008, 4:48pm | #

I really don't understand some libertarians fascination with obama.

Fascination is one thing, throwing the man a vote is something entirely different.

Best to know as much as one can about our next President.

Good point and difficult to determine because he's a politician and therefore if his lips are moving......

joshua corning | February 15, 2008, 4:49pm | #

But he's a nice one, not an arrogant one like Gore, Kerry, or Hillary.

Fuck...you are right.

You have convinced me Weigle of Reason magazine.

I, libertarian at large, Joshua Corning will now vote for the nice commie cuz that is the right thing to do for the libertarian cause.

rawdawgbuffalo | February 15, 2008, 4:50pm | #

well if obama doesnt get the nod, i hope the dems wont run into a brick wall

Reinmoose | February 15, 2008, 4:51pm | #

Nothing drives a person toward Obama like hearing Hillary or McCain give a speech. I heard Hillary on the tele the other day while she was stumping in Texas and I thought I was going to vomit. There was something wrong with her voice... there was too much raw passion in it.

The Wine Commonsewer | February 15, 2008, 4:53pm | #

Hand grenades? Hell, I got carded the other day for buying a gallon of lacquer thinner.

Adamness | February 15, 2008, 4:54pm | #

I said it in another thread, and I'll say it here, stop calling Obama a libertarian, or libertarianish. Being less socialistic and less authoritarian than Hillary or Lenin doesn't make someone a libertarian. Remember, Obama wants a national healthcare system. It's not as invasive as Hillary's automatic enrollment and garnishing of wages healthcare plan, but it's still government healthcare. That right there is a sign of not being a libertarian.

In my opinion, a few Reason writers are trying to justify their support for Obama. Yeah, we get it, he's a good speaker and makes us all feel warm and fuzzy inside, but he's still a liberal and a Democrat. While he and us might agree on some things, we also can find agreements with Ted Kennedy, but that doesn't make him a libertarian. Nor does it make us liberal.

Timothy | February 15, 2008, 4:58pm | #

Joe P Boyle and
joshua corning in love
I fear the future.

The Wine Commonsewer | February 15, 2008, 5:01pm | #

Raw, never saw a pint size can of Whoop Ass before. :-)

But he's a nice one, not an arrogant one like Gore, Kerry, or Hillary.

And that is one major factor holding St Hill back, she ain't very likable. Obama, is kind of cool, hip, young, carries himself well, has good presence, and it's easy for people to project that into all kind of good will. Espc, the moderates, because moderates don't think like us anyway. Moderates are not arguing over whether or not the government should be in the medical business they're arguing over whose plan is better. St Hillary's or Obama's, and Obama's seems much more sensible and costs less.

R C Dean | February 15, 2008, 5:04pm | #

Obama is a civil libertarian on the issues that his supporters care about, and not on the issues that his supporters do not care about or actually dislike.

Someone who supports civil liberties as a matter of political opportunism does not really support civil liberties in any meaningful way. The whole point of civil liberties is that they are guaranteed even though they are unpopular.

Oh, and Official Agreement with joe @ 4:25.

Christopher Monnier | February 15, 2008, 5:04pm | #

I agree with Fluffy. If the only thing Obama does is increase transparency of the federal government, his presidency would be beneficial. Isn't there some saying about the control of information and dictatorships? I can't remember it, but if I could I'd mention that to reinforce my point.

Obama is the only candidate talking about transparency. It gets little media coverage and hardly any voters know that they should care about it, so they don't. So Obama has no reason to pander on this issue, and his track record (videotaped confessions, the federal law about an earmark database) shows he actually cares about it.

Fluffy | February 15, 2008, 5:06pm | #

Ted Kennedy is anything but a libertarian.

I spent most of my life considering Ted Kennedy a political enemy.

Ted Kennedy is a dirty, filthy leftist bastard.

But if I could see Ted Kennedy as President in 2009 over McCain I would take it in a heartbeat. I would dance in the streets for joy.

Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

mediageek | February 15, 2008, 5:13pm | #

Obama's smooth. I like how he claims to support an individual right, yet defend localities that wish to enact their own "gun safety" laws.

An examination of Chicago's laws regarding handguns shows that their ban on them differs from DC's only in the wording, but hardly the outcome.

On top of that, Obama has spoken out in favor of banning not just so-called "assault weapons" but all semi-automatic firearms.

Additionally, he has spoken out in favor of a federal, nationwide ban on all concealed carry for any citizen who isn't a law-enforcement officer.

That the man has the audacity to claim he supports an individualist view on the Second Amendment would be utterly laughable if not for his Reaganesque level of charisma.

joshua corning | February 15, 2008, 5:14pm | #

Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

And then 10 min later Teddy would re-institute the draft and invade Africa.

Fluffy, being confused, would continue to sing praise.

Plant Immigration Rights Supporter | February 15, 2008, 5:17pm | #

"that inflame the gonads of the McCain Right"

McCain Right??? What the *&%^ is that? That lmost sounds like "the Hillary Right."

Gilbert Martin | February 15, 2008, 5:17pm | #

Obama is only a libertarian if the definition of liberatarian has been re-written to be synonomous with socialist.

J sub D | February 15, 2008, 5:19pm | #

Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

I wouldn't go that far, but the Bush administration does need to pay for the crimes they have committed. Given their penchant for secrecy, we likely don't even know what they all are. I'll bet on my last sentence.

Warty | February 15, 2008, 5:20pm | #

his Reaganesque level of charisma.

I don't get that, either. The man makes my skin crawl. Maybe I'm immune to charm or something.

Austan | February 15, 2008, 5:25pm | #

Gibert, is Austan Goolsbee a socialist too?

whiskey | February 15, 2008, 5:25pm | #

joe $4:25

I meant that so long as you can either concealed carry or open carry, that doesn't abridge the ability to bear. I guess I'm more of a "the Second Amendment protects military arms not hunting rifles" kinda guy, so I lean more in the favor of "you can't ban automatic weapons" and less in the "you can't ban concealed carry."

I mean, I can't see how a state could mandate gun possession and run afoul of the Second Amendment, and the state could mandate that those guns be carried openly under their ability to regulate the militia. I mean, the term "well-regulated" means something, even if it's well-trained, which implies that someone can train them, and as far as I'm aware, military dress code is part of military training. Right? The militia will be ever-vigilant against foreign invaders and all that? How are we supposed to be protected by guns behind every blade of grass if the person holding the gun doesn't know how to use it?

joshua corning | February 15, 2008, 5:29pm | #

I don't get that, either. The man makes my skin crawl. Maybe I'm immune to charm or something.

Really? Ya I see him as fluff that will be gobbled up by all the people behind him and the byzantine US government's bureaucracy...which in libertarian terms might actually be nice.

Oh well McCain is going to be the next president anyway so it doesn't really matter.

John Rhoads | February 15, 2008, 5:35pm | #

I'm old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

Maybe in Massachusetts. In my native Virginia, asserting that gun ownership is not an individual right would be seen as fairly eccentric and a certainly a surefire way to lose an election. I don't think I heard the "collective right" 2nd amendment interpretation until I got to college despite my father being a government professor and growing up in the fairly liberal Charlottesville, va.

mediageek | February 15, 2008, 5:37pm | #

Warty-

I think Obama is an exceptional public speaker. That he seems able to persuade people who, by all rights, vehemently disagree with him is what I find creepy about it.

The Wine Commonsewer | February 15, 2008, 5:40pm | #

Obama is the only candidate talking about transparency

Something like Bush I insisting that there would be no newt axes. Or the Republicans preaching the gospel of fiscal restraint.

Cesar | February 15, 2008, 5:41pm | #

TWC, don't forget Bush II's "humble foreign policy".

mediageek | February 15, 2008, 5:42pm | #

The militia will be ever-vigilant against foreign invaders and all that? How are we supposed to be protected by guns behind every blade of grass if the person holding the gun doesn't know how to use it?
Hence the original reason for instituting the CMP and the NRA.

joe | February 15, 2008, 5:44pm | #

So the line to be drawn on what arms can be carried by citizens is political, not written in some sort of constitutional stone.

Well, sorta. There are decisions to be made through the political process, but that isn't the same thing as saying that it's open season.

We can have laws against harrassment or slander without running afoul of the First Amendment because 1) there is a compelling interest, 2) the law if carefully crafter to address that interest, 3) the law is narrow enough to address the interest without stomping on all sorts of other areas, and 4) the laws don't intrude in a meaningful way on people's ability to engage in the practices that the First was intended to protect, like political speech, voicing one's opinion, engaging in social intercourse, and the like.

Similarly, there were certain purposes behind protecting the right to bear arms. A list might look like: hunting/birding, home defense, personal defense, sporting, serving in the militia - the list being based on the intent of the framers in drafting the amendment. If a law places an undue burden on anyone trying to do any of these things, then it violates one's rights.

"Common sense" is a turn of phrase people use when speaking in general terms, and is certainly not the right standard in figuring out what would pass constitutional muster. It doesn't mean anything in and of itself, so it's impossible to say just from that one quote what "common sense" regulations would be.

Cesar | February 15, 2008, 5:44pm | #

John McCain is truly a lackluster speaker

"There are going to be more wars, my friends, more combat wounds, more PTSD....the prospect of a brighter future is not clear"

I can't think of anything more depressing, especially when said slowly by a 74 year old man. The guys speeches have an effect on me not unlike Ambien.

Cesar | February 15, 2008, 5:45pm | #

Should read properly, "not unlike that of Ambien".

weeaboos | February 15, 2008, 5:45pm | #

The Wine Commonsewer: I would think fans of Radley Balko's work would be more appreciative of Obama taking on the immensely corrupt Chicago police on the whole interrogation videotaping thing.

So, you know, practicing what he preaches.

mediageek | February 15, 2008, 5:47pm | #

"Common sense" is a turn of phrase people use when speaking in general terms, and is certainly not the right standard in figuring out what would pass constitutional muster.
I'd be tickled four shades of awesome if gun control laws had to pass a strict scrutiny test.

joe | February 15, 2008, 5:47pm | #

Well, John Roads, the "collective right" interpretation has been the law of the land since before any of us were born. I'm going to stand pat: the "individual right" interpretation was an eccentric, fringe position. It was not mainstream, it was not the law, and it was not the reigning Constitutional doctrine.

The Wine Commonsewer | February 15, 2008, 5:53pm | #

The Wine Commonsewer: I would think fans of Radley Balko's work would be more appreciative of Obama taking on the immensely corrupt Chicago police on the whole interrogation videotaping thing.

But see, that's like taking on the Mafia, you just aren't likely to find many people who are down with corrupt cops. Yes, a few ostrich-like law-and-order types will be in denial, but most everyone else is going to be thrilled.

TWC

John Rhoads | February 15, 2008, 5:54pm | #

Well, John Roads, the "collective right" interpretation has been the law of the land since before any of us were born.
Well, I guess we have reduced the situation down to it's most fundamental level. I don't think there is any evidence to back up your assertion, the supreme court has not ruled on this issue one way or the other, and certainly in Virginia the "individual right" to keep and bear arms is unquestioned.

Fluffy | February 15, 2008, 5:55pm | #

Try to look beyond joe's use of the loaded terms "eccentric" and "fringe" and realize that at one time the view that the state could not impose segregation on taxpayer-funded facilities was an eccentric and fringe position. The view that states could not impose poll taxes was once an eccentric and fringe position. The view that equal protection of the laws applied to homosexuals was once an eccentric and fringe position. And so forth.

Although in the case of the Second Amendment I think joe is overstating the case a bit when he says "8 years". Certainly for at least 30 [perhaps 40] years the view that the 2nd Amendment is an individual right was held by a large enough minority of the population that the characterization of the view as "fringe" or "eccentric" just isn't statistically valid. I think it's more proper to say that it was outside the mainstream of existing Constitutional precedent, and despite representing the political view of a large group, a desperate legal battle was and still is being fought to maintain the status quo.

joe | February 15, 2008, 5:56pm | #

Um, yes, yes it has. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

I cannot speak to Virginians' knowledge of constitutional law.

weeaboos | February 15, 2008, 5:57pm | #

TWC: there's not being down with corrupt cops and then there's actually doing something about it proactively.

There's little political gain in protecting against police corruption before it blows up spectacularly publically.

joshua corning | February 15, 2008, 6:01pm | #

Someone who supports civil liberties as a matter of political opportunism does not really support civil liberties in any meaningful way. The whole point of civil liberties is that they are guaranteed even though they are unpopular.

And

Try to look beyond joe's use of the loaded terms "eccentric" and "fringe" and realize that at one time the view that the state could not impose segregation on taxpayer-funded facilities was an eccentric and fringe position. The view that states could not impose poll taxes was once an eccentric and fringe position. The view that equal protection of the laws applied to homosexuals was once an eccentric and fringe position. And so forth.

WTF?!?!

I totally said this at 4:40 and said it 5 millions times better!!

I deserve the awsomenessessessist crown of Reason cool!!

Just like joe got for hinting like three days ago that maybe in a nation that has liberal democratic traditions that a thug like Chavez might maybe have a little less power if people don't like what he is doing...maybe.

WTF?!

The Wine Commonsewer | February 15, 2008, 6:03pm | #

Wee, I didn't mean it wasn't cool. I'm happy that Obama took on the Chicago Police corruption. I just mean it's not terribly controversial and isn't likely to polarize the electorate, like say his stance on pistolas and health care.

J sub D | February 15, 2008, 6:07pm | #

The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

Supreme Court decisions have been overruled in the past, and will be again. Sometimes the Supreme Court is just plain wrong. I expect that is unarguable, even by joe.

The Wine Commonsewer | February 15, 2008, 6:07pm | #

{Jon Stewart walks out. Hands Corning Reason's Awesomest Cool Crown}

And the crowd goes wild.....

juris imprudent | February 15, 2008, 6:08pm | #

joe sez In many places, openly carrying a gun is illegal, too.

It was made illegal in California when the Black Panthers were doing it. There you go joe, a two-fer.

mediageek | February 15, 2008, 6:09pm | #

The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.
Source please.

Warty | February 15, 2008, 6:09pm | #

Um, yes, yes it has. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.
Quoting Wikipedia:

On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:

1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
4. The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.

Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court.

On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Describing the constitutional authority under which Congress could call forth state militia, the Court stated:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Court also looked to historical sources to explain the meaning of "militia" as set down by the authors of the Constitution:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.


If Miller hadn't been a shady character and had shown up, he could have easily demonstrated that short-barreled shotguns are in fact ordinary military equipment. The Germans thought Americans were barbarians for using them in WWI.

But that doesn't really have anything to do with the court finding individual vs. collective right. I just think it's amazing that the only ruling to address that is based on a case where the guy didn't even show up.

juris imprudent | February 15, 2008, 6:09pm | #

joe sez The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

Wrong joe, but thanks for playing. Why don't you stick to race-baiting?

John Rhoads | February 15, 2008, 6:11pm | #

Joe: Here's a link to US v Miller (the 1939 gun rights case) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174

The words "collective right" do not appear in it, and the interpretation of the case has been a subject of debate since then. Certainly the collective rights argument has been around since this time, but it has never been a settled legal question.

Warty | February 15, 2008, 6:12pm | #

3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

Well, I'm off to the gun store to get a select-fire M-4 and some grenades. Wait, what's that you say? ...Shit. Never mind.

R C Dean | February 15, 2008, 6:13pm | #

If the only thing Obama does is increase transparency of the federal government, his presidency would be beneficial.

It will be physically impossible for that to be the only thing he does. He will do lots and lots of other things, just by being in the White House.

My question is, what else is he likely to do? So far, the answer I'm getting is, little to nothing that I will like.

I totally said this at 4:40 and said it 5 millions times better!!

Sorry, josh. Too many words. On the web, brevity is teh king.

Well, John Roads, the "collective right" interpretation has been the law of the land since before any of us were born.

Not really. The Supreme Court has never adopted the collective right interpretation. I'd have to dig through a bunch of old stuff to see if any Circuit Court has, but if the have, its only the governing interpretation for their Circuit.

LarryA | February 15, 2008, 6:14pm | #

obama is as libertarian as ron paul is president

Please note that “civil libertarians” are people who say they support civil liberties. This has no relation to the political philosophy, libertarian, which supports minimal government.

Obama is an ACLU-bertarian.

I'm old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

And I’m old enough to remember when the right to keep and bear arms was treated the same way all the other rights are.

When I graduated high school (1965) almost every high school in New York City had a rifle team. Students carried their rifles to and from school on the subway, and got about as much notice as the band kid with a trombone.

Anyway, the individual interpretation isn’t “eccentric” any more, or Hillary and Barack wouldn’t be claiming to believe in it.

I mean a government can't ban guns from courthouses?

What’s so special about a courthouse? Why should you want to encourage multiple random murders there? Other than the high probability lawyers will be involved, that is.

How does banning concealed carry prevent either keeping or bearing arms?

We’ve had the concealed v open carry debate before. One reason is that requiring open carry allows law enforcement to harass minorities they think shouldn’t carry. Another is that criminals can open fire on those carrying first, eliminating resistance.

Obama's a relative newcomer to federal government, so he doesn't have years and years of cronies built up, and he likely will have trouble getting his own ideas passed.

Does he have any ideas of his own?

insisting that there would be no newt axes

Gingrich is back? [Sorry, I couldn’t resist.]

The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intended to allow the formation of state militias.

Self-contradictory. Members of state militias were, and still are, expected to show up bearing their own firearms. See Texas State Guard. IOW, “We need state and local militias to secure the government, therefore individuals must be armed.”

John Rhoads | February 15, 2008, 6:14pm | #

Here's a discussion of it's meaning on the SCOTUS blog:

http://www.scotusblog.com/wp/uncategorized/court-agrees-to-rule-on-gun-case/

again, it's hardly a settled legal issue...if it were, it is unlikely that the court would be hearing this case now.

juris imprudent | February 15, 2008, 6:14pm | #

RC sez I'd have to dig through a bunch of old stuff to see if any Circuit Court has

I'll save you the trouble, the wrongway 9th has. What does THAT tell you?

LarryA | February 15, 2008, 6:17pm | #

I'd have to dig through a bunch of old stuff to see if any Circuit Court has, but if the have, its only the governing interpretation for their Circuit.

The Ninth Circuit (California) has. The Fifth Circuit (New Orleans, in a Texas case) ruled it an individual right.

LarryA | February 15, 2008, 6:18pm | #

Dang.

R C Dean | February 15, 2008, 6:18pm | #

Look at the key sentence in Miller:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The court is saying, in effect, that weapons that have some reasonable relationship to teh the preservation or efficiency of a well-regulated militia are protected by the 2A. Nothing there about collective rights.

The reference in the discussion about militia to "arms supplied by themselves" is generally regarded as being inconsistent with a collective right interpretation. Its hard to say that the 2A protects a right of the states and to say that it applies to arms owned by private citizens.

R C Dean | February 15, 2008, 6:20pm | #

What does THAT tell you?

That the 9th Circuit treats it as a collective right.

The 9th is also the Circuit that is most likely to be overturned by the Supremes.

What does THAT tell you?

J sub D | February 15, 2008, 6:24pm | #

I'll save you the trouble, the wrongway 9th has. What does THAT tell you?

What is it with the ninth? The water supply? Too close to Hollywood? Fear of the Earth opening up?

mediageek | February 15, 2008, 6:29pm | #

FWIW, the 9th Circuit Court has also ruled that if you build a machine gun for your own personal use, that it obviously is not involved in interstate commerce.

I don't recall the case, though the Supreme Court smacked that one down at about the time that Raich was being ruled on.

juris imprudent | February 15, 2008, 6:32pm | #

The 9th is also the Circuit that is most likely to be overturned by the Supremes.

RC, are you taking stupid pills from joe?

That was my point.

juris imprudent | February 15, 2008, 6:37pm | #

Just to simplify. The DoJ argued essentially the 'collective rights' in their appeal of Miller. Miller was not represented before SCotUS (how different things might have been if he had been). The court didn't buy it. Had the court bought it, they would've noted Miller's lack of standing to assert a 2nd Amdt challenge. They did not. They remanded the case for an evidentiary hearing (to determine if the gun in question had military usefulness). Miller by then was dead and Layman (his co-defendant) plead out and the case mooted. Only the incredibly mendacious or totally uninformed argue that this established the collective right as precedent.

joe | February 15, 2008, 6:59pm | #

Thank you, Warty.

Mr. Rhoads, The words "collective right" do not appear in it is what's called a "semantic game." As is RC's The court is saying, in effect, that weapons that have some reasonable relationship to teh the preservation or efficiency of a well-regulated militia are protected by the 2A. Nothing there about collective rights. The concept of a collective right - that the "right to keep and bear arms" is rightfully applied to the "militia" - is the central holding of the case, and what is referred to as the "collective right" interpretation of the 2nd Amendment.

You both know this. Stop playing dumb just to try to save face. It's unmanly.

What has been "debated" since then was whether that ruling was correct. It has not been "debated" since then whether that was the holding in the case.

juris,

It didn't establish the "collective rights" interpretation (good job, btw, at knowing the meaning of that incredibly common term) as the controlling precedent, but that was the reasoning that has been pointed to ever since by courts upholding the "collective rights" interpretation.

Which, once again, is a term that everybody on this thread knows the meaning of, knows the history of, knows the intellectual pedigree of, and really shouldn't be pretending to be confused about.

John C. Randolph | February 15, 2008, 7:02pm | #

"I don't see how "common-sense gun laws" necessarily runs against the Second Amendment. "

It has something to do with the fact that every last one of them exists for no other purpose than to interfere with the right to self-defense.

-jcr

joe | February 15, 2008, 7:10pm | #

From Findlawhttp://writ.news.findlaw.com/dorf/20011031.html

One important Second Amendment precedent is the 1939 decision of United States v. Miller. There, the Supreme Court rejected a Second Amendment challenge to an indictment for possession of a sawed-off shotgun in violation of federal law.

In a terse opinion, the Court concluded: "In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Most courts and many commentators have read Miller as officially adopting the collective right view of the Second Amendment — that is, one of the views set forth in the first or second model that the Fifth Circuit described in its opinion.

But, hey, this "collective right" idea, it certainly had nothing to do with the Miller case, right?

A google search on "collective right gun control" produces 171,000 hits. So far, every single of them identified "collective right" as referring to the idea that the 2nd Amendment guarantees the right to bear arms to the militia, and every single one of them describes how the reasoning is traced back to Miller.

joe | February 15, 2008, 7:14pm | #

RC,

I'm not even arguing that the "collective right" interpretation of Miller - the one that defined gun control jurisprudence for seventy years, and is now being challenged - is the right interpretation of that holding.

But facts are facts: that is the history of gun-regulation law. The Miller decision tied the right to bear arms to the militia, rather than the particular desires of individuals, and the case law since then has been based on the idea that the 2nd Amendment created a collective right.

mediageek | February 15, 2008, 7:15pm | #

Joe failed to cite a source.

Oh well.

mediageek | February 15, 2008, 7:17pm | #

...and every single one of them describes how the reasoning is traced back to Miller.
Only for those who torture US v. Miller long enough to kinda-sorta see a "collective right" if they squint right.

John C. Randolph | February 15, 2008, 7:19pm | #

"There was something wrong with her voice... there was too much raw passion in it."

Nothing wrong with raw passion. What HIllary projects though, is lust for power.

-jcr

mediageek | February 15, 2008, 7:21pm | #

Whoops. Hadn't refreshed to see that joe had posted something new.

My bad.

joe | February 15, 2008, 7:23pm | #

mediageek,

Only for those who torture US v. Miller long enough to kinda-sorta see a "collective right" if they squint right. Whether you like it or not, that category includes virtually the entirety of the American judiciary between 1940 and 2000.

Maybe you think they're all wrong; fine. I do, too. Regardless, props for not feigning confusion.

whiskey | February 15, 2008, 7:25pm | #

comment 100 snypa

mediageek | February 15, 2008, 7:39pm | #

Joe-

The 5th Circuit court ruled the 2nd to be an individual right in the Emerson case.

As I understand it, it was assumed that every individual had a right to arms, and that this was set forth even in English common law.

From that perspective, it seems to me that the "collective rights" interpretation is a recent development, and one that was constructed on shoddy intellectualism.

John Rhoads | February 15, 2008, 7:39pm | #

joe,

the fact that I provided a link to the text of US v Miller probably indicates that I legitimately believe that said text does not clearly indicate a collective right. You can think I'm stupid for that holding that opinion if you want, but I can assure you, that I read the opinion today, and I believe that it is ambiguous on that question. I too am not arguing what I want the interpretation of the second amendment to be. I honestly believe that Us v Miller does not say anything affirmative about this issue, and I encourage people to read the actual language of the case and come to their own conclusions. I'm going contradancing now, so I cannot continue to make my point, and I will have to allow the language used in the case to make it for me.

juris imprudent | February 15, 2008, 7:42pm | #

joe sez good job, btw, at knowing the meaning of that incredibly common term

Funny but no other right seems to be treated as a "collective right". Until you start drinking the progressive kool-aid - then everything is for the common good or it can't be good at all.

Oh, and Mike Dorf fits in the extremely mendacious group. You're still in the ignorant column.

but that was the reasoning that has been pointed to ever since by courts upholding the "collective rights" interpretation.

Let the scales fall from your eyes oh searcher of facts... hier

Pay particular attention to the 9th Circus' extraordinary pratfall (in Hickman) in getting nearly ALL of the facts about Miller wrong.

R C Dean | February 15, 2008, 8:08pm | #

RC, are you taking stupid pills from joe?

That was my point.


Sorry, missed the reference to "wrongway" 9th. My bad.

The Miller decision tied the right to bear arms to the militia, rather than the particular desires of individuals,

Umm, not really. There is not one syllable in Miller to the effect that only certain people or organizations are protected by the 2A. Miller is a case about whether certain weapons are protected by the 2A, not whether certain persons are.

and the case law since then has been based on the idea that the 2nd Amendment created a collective right.

Not really, joe. The whole notion of a "collective right" interpretation of the 2A is a relatively late entrant, and there is plenty of language, albeit mostly dicta, that is not consistent with that interpretation. Check the Emerson opinion for a run-down.

The fact that one faction of the legal academy supported the collective right interpretation for a few decades hardly makes it the predominant strand in the case law.

juris imprudent | February 15, 2008, 8:23pm | #

RC sez My bad.

[pay attention to this part joe...]

No problem RC.

Geotpf | February 15, 2008, 8:45pm | #

There are currently three people who are likely to become president. Obama, Clinton, and McCain. Of the three, Obama is clearly the most libertarian, taken as a whole.

R C Dean-The "collective right" interpretation dates from at least the 1930's, and has more or less consistantly been the Supreme Court's position since then. It's not THAT new.

Eric Dondero | February 15, 2008, 9:45pm | #

Obama just got endorsed by that civil libertarian of all civil libertarians: Daniel Ortega of Nicauragua.

This is a no shitter. Communist Dictator Ortega enthusiastically endorsed Obama for President on Wednesday per the AP.

Link up at www.libertarianrepublican.blospot.com

ed | February 15, 2008, 9:55pm | #

I'm so confused.
Will somebody please tell me what to think?

Regards,
The Electorate

Robert | February 15, 2008, 10:56pm | #

"I don't see how "common-sense gun laws" necessarily runs against the Second Amendment. "

It has something to do with the fact that every last one of them exists for no other purpose than to interfere with the right to self-defense.
Effect, but not purpose, unless you think they're all drafted by sadists who just want to promote violence for the hell of it.

R C Dean | February 15, 2008, 11:21pm | #

The "collective right" interpretation dates from at least the 1930's, and has more or less consistantly been the Supreme Court's position since then. It's not THAT new.

Cites, please.

My recollection is that the only references by the Supreme Court to the 2A in the last several decades have been in dicta, listing it alongside the other amendments that have been incorporated and apply to the states.

And, for cryin' out loud, Miller doesn't support a collective right. It is, at best, silent on the subject. It doesn't talk at all about whether individuals or states have the right - not in the holding, not in dicta. It is a case about trying to define the "arms" referred to in the 2A.

If you really try to squeeze anything about collective v. individual rights out of Miller, you basically have a reference to individuals supplying their own weapons. Trying to hold that "the militia is people who own their own guns" means "individuals have no right to keep and bear arms" is a complete non sequitur.

You shouldn't try to read too much into issues not addressed in a case, but if the Miller court thought that the defendant wasn't covered by the 2A at all, being an individual, why did they discuss whether his weapon was protected by the 2A? If anything, the Miller court assumed Miller was covered, otherwise the discussion about "which weapons" is unnecessary and beside the point.

Franklin | February 15, 2008, 11:28pm | #

And he showed how much he respects civil liberties when he voted to reauthorize the PATRIOT Act.

Prodigy isn't fooled.

Kevin P. | February 15, 2008, 11:53pm | #

What is a "collective right"? Nobody can explain this to me. Who possesses such a right? If the right is nullified, who has standing to sue in a court? Since the States and Federal government have plenary power to organize militias and draft citizens into them, what could possibly prevent state militia members from keeping guns on duty? Why would this right even exist? How can a group of citizens possess a right in the collective, and not possess the right as individuals? If the state of Texas created a well regulated citizen militia consisting of all citizens, and armed those citizens with machine guns, would they have the right to keep and bear arms in the collective? Or would some other clever legal opinion render the collective right meaningless? A collective right is legal nonsense, mumbo jumbo intended to destroy a part of the Constitution through the personal opinion of judges.

Auberon | February 16, 2008, 12:04am | #

So here's a question: Why can't the LP nominate Ron Paul even if Paul doesn't want their nomination? Surely having Paul's name on the ballot would get the LP more votes than ever.

alisa | February 16, 2008, 12:32am | #

I've never understood this collective right stuff either. Rights are enumerated when there's a risk that a government could take them away. If a state or the federal government organizes an armed militia, there's no risk that the militia will be deprived of its right to bear arms.

Obama's being politically pragmatic by hedging on the gun issue and I don't think it's cause for outrage. He's not a libertarian, but he has some undeniably right positions on due process, torture, transparency -- the "classical liberal" issues that ought to be common ground.

Morgan | February 16, 2008, 5:00am | #

Well according to his wife, Obama's the only one that can fix our 'souls'. Thanks but no thanks. I somehow doubt, though, that the disdain for religion in politics we see for the right will be directed at this messianic cluster F.

Eric Dondero | February 16, 2008, 6:59am | #

Auberon, why should the LP nominate Ron Paul? They already have two or three likely candidates who are much better than Paul, and won't embarrass the Party: Wayne Root, Bob Barr, and Mike Jingozian.

Paul would stain the LP with an aura of Larouchie-ism.

Eric Dondero | February 16, 2008, 7:01am | #

Franklin, the Patriot Act was a mixed bag: Definitely NOT clear cut from a libertarian perspective.

Most of the provisions in it were designed to crack down on Middle Easterners WHO OVERSTAYE THEIR VISAS!!! They were NOT US Citizens.

Call me crazy, but I have no sympathy for some Radical Muslim "student" at a local public library perusing the internet for plans to build a dirty bomb.

Eric Dondero | February 16, 2008, 7:03am | #

I do not want to plug my own Blog - Libertarian Republican, (where this is posted), so I will plug Rightwingnews.com

You all simply MUST see this. There's a spoof video, obviously produced by the Obama campaign of Hillary Clinton.

It's vintage 1970s cheezy. Brady Bunch meets Osmond Family. Funniest video of the entire campaign.

Warty | February 16, 2008, 9:27am | #

Of course you want to plug your blog, you poorly-mustachioed cocksucker.

This talk of case law reminded me of Gulliver's Travels:
I said, “there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself. Now, in this case, I, who am the right owner, lie under two great disadvantages: first, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which is an unnatural office he always attempts with great awkwardness, if not with ill-will. The second disadvantage is, that my lawyer must proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore I have but two methods to preserve my cow. The first is, to gain over my adversary’s lawyer with a double fee, who will then betray his client by insinuating that he hath justice on his side. The second way is for my lawyer to make my cause appear as unjust as he can, by allowing the cow to belong to my adversary: and this, if it be skilfully done, will certainly bespeak the favour of the bench. Now your honour is to know, that these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing any thing unbecoming their nature or their office.

“It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

“In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue.

Roger Maltz | February 16, 2008, 10:54am | #

Mike Jingozian? Ha ha ha, oh my word Rittberg, you slay me every time.

juris imprudent | February 16, 2008, 12:57pm | #

What is a "collective right"?

joe, bless his soul, already pointed out that it is a fiction created to terminate the 2nd Amdt without bothering with that Article 5 stuff. It "originates" in Miller about like original sin does in Adam - sans the fig leaf.

Robert | February 16, 2008, 2:01pm | #

Why can't the LP nominate Ron Paul even if Paul doesn't want their nomination?
The states wouldn't allow his name to appear on the ballot unless he accepts the nomination.

Bill Cooke | February 16, 2008, 4:03pm | #

I'm not an Obama fan, but in many respects he would be better than McCain. Having said that, I'm still going to throw my vote away this year.

Also, in regards to guns I would take this position: The Constitution allows for no federal restrictions on guns. However, it does not prevent State and local restrictions on firearms as it only applies to Congress. I wouldn't argue that the 14th amendment should make it apply to States. Different people in different parts of the country have different views about guns. They should be able to decide what, if any, restrictions they want.

Bill
ps. I'm pimping for my blog. Does anyone want to join as a contributor or does anyone want to exchange links or rss feeds?

joe | February 16, 2008, 4:23pm | #

juris,

Once again, pointing out that you, and some other people, don't find the interpretation that the courts have given to Miller convincing is not the same thing as demonstrating that they have not given it that interpretation. My statement about how Miller was used to establish a "collective rights" doctrine was descriptive, not prescriptive.

RC,it was not one faction of the legal academy That was the mainstream position, held by most judges for decades. And, once again, since it seems to be an oft-misunderstood point: this is not a statement about what should be, but what is. If the SCOTUS rules against DC, and establishes an individual-rights interpretation, that will be the establishment of a new precedent, based on a new standard. That's why it's such an important case, and is receiving so much attention.

Kevin P.,

The "Collective Right" interpretation means that the 2nd Amendment is to read like the 9th and 10th, which protect the "rights" of the states and the People - both of which are collectives - against federal intrusion.

whiskey | February 16, 2008, 5:15pm | #

@ Bill Cooke, 4:03 pm:
A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC's theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC's argument is contrary to the constitutional plan for federal militia supremacy.

Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.
from the Volokh Conspiracy

juris imprudent | February 16, 2008, 5:34pm | #

joe sez My statement about how Miller was used to establish a "collective rights" doctrine was descriptive

You didn't read the Denning article, did you? You do agree that Miller itself didn't establish (let alone USE the actual words) "collective right". So, the question is what case DID establish that. Not really Cases or Tot, although they did some interesting twisting of Miller. I think you have to come all the way down to Hickman and the beloved 9th to get the lack of standing NECESSARY to obliterate any possibility of the right applying to individuals. Joe, you will note that Hickman is not the law of the land ('cept in the 9th Circuit), and it wasn't decided back in the '30s. Oh, and about what a "collective right interpretation" means, has nothing to do with the 9th or 10th Amdts. What was it you said, over 170K google hits on gun control and collective right?

So, in your own words
Stop playing dumb just to try to save face. It's unmanly.

joe | February 16, 2008, 5:56pm | #

That's lame, juris.

The history of doctrines established through case laws doesn't begin when a doctrine is expressed in its complete and final form, but when the first rulings that eventually led to that outcome were handed down. You've obviously gone well beyond arguing in good faith if you're pretending not to know this.

Oh, and about what a "collective right interpretation" means, has nothing to do with the 9th or 10th Amdts. Once again, I don't think you're actually this dumb, I think you're decided that slaying the dragon is more important that honesty. You are actually going to claim that the collective rights reading of the 2nd amendment - that it is about reserving a power to the states and denying the federal government the right to interfere with that power - has nothing to do with the 9th or 10th amendments?

OK. Whatever.

joe | February 16, 2008, 5:57pm | #

juris, tell us what the "collective right" reading of the 2nd Amendment is.

Seriously, I'm wondering if you even know at this point, other than "it's teh evil."

juris imprudent | February 16, 2008, 6:31pm | #

joe sez The history of doctrines established through case laws doesn't begin when a doctrine is expressed in its complete and final form, but when the first rulings that eventually led to that outcome were handed down.

Separate but equal, joe? Ring a bell? The actual words used in Plessey?

Collective right has nothing to do with reserving to the states and/or people, respectively, and you damn well can't quote anything to that effect.

The collective right myth is that the 2nd does NOT create a right which can be exercised by an individual, e.g. Heller. The argument is that the right applies to the people of the state as a body, such that say California could sue the U.S. for interfering with the California militia. The two circuits that have articulated this position are the 6th and 9th. The 5th of course opposed this in Emerson, though not with any substantive result. SCotUS has NEVER endorsed the collective right interpretation, nor did Miller honestly lay the foundation. As Denning points out, the Circuit courts largely created it.

Really, dude, give it a rest.

joe | February 16, 2008, 6:51pm | #

Yes, I know that Plessey used the phrase "separate but equal." Was there a point that bit of snark was supposed to convey?

I also know that both the phrase and concept "affirmative action" do not appear in Brown vs. Board, but that its holding about the government having a duty to undo the segregation in society - not just in the schools, but to desegregate the schools as a method of desegregating society - was drawn on in later cases which did utilize the phrase and concept of "affirmative action."

Just like how the foundation "collective right" reading of the Second Amendment - not the