Volokh on The Second, worth reading

alan · December 9, 2002, 12:12 AM

http://www.nationalreview.com/commen...lohk120602.asp

Tamara · December 9, 2002, 12:16 AM

Quote:

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Thoughtful of him to include a great piece of sigline material.

Sprout · December 9, 2002, 01:06 AM

I'm in Volokh's Firearms Regulation class this semester. Really, really, smart guy.

alan · December 9, 2002, 11:20 AM

December 6, 2002, 12:25 p.m.
Who’s Right on Second?
Living, breathing decisions.

By Eugene Volokh

omeone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from earlier this year, 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right-to-bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll earlier this year found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

— Eugene Volokh teaches First Amendment law at UCLA School of Law.

Bartholomew Roberts · December 9, 2002, 04:00 PM

Don't forget to click on the link and read the story there as long as it remains up. Organizations have no incentive to post those types of stories if few people read them and they can see how many readers follow particular stories.

Cuchulainn · December 9, 2002, 04:09 PM

Reading Volokh sometimes can be like watching a martial arts grand master. I love the way he uses the "momentum" of the antis' theories against them.

TheBluesMan · December 9, 2002, 11:34 PM

Sprout,

You should consider yourself lucky/blessed. Dr. Volokh is among the most brilliant minds in the field of constitutional law today. Thankfully, he is a prolific writer and there is a ton of his work on the 'net.

http://volokh.blogspot.com

Enjoy his class!

Sprout · December 10, 2002, 06:20 PM

TheBluesMan,

I know. This is the second class I've taken from Volokh; I took his First Amendment class last year. When I found out he was teaching Firearms Regulation I jumped for joy.

He's not only very smart, and one of the clearest writers I've read, but he's quite a nice guy as well. Halfway through the year we had a Q&A with an ATF agent and took a field trip to the gun range. Fun class.

December 9, 2002, 12:12 AM	#1
alan Senior Member Join Date: June 7, 1999 Posts: 3,847	Volokh on The Second, worth reading http://www.nationalreview.com/commen...lohk120602.asp

December 9, 2002, 11:20 AM	#4
alan Senior Member Join Date: June 7, 1999 Posts: 3,847	lest the link fail December 6, 2002, 12:25 p.m. Who’s Right on Second? Living, breathing decisions. By Eugene Volokh omeone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality? 1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms. If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added]. Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one. 2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from earlier this year, 73 percent took that view, and 20 percent took the states' rights view. Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right-to-bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll earlier this year found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important." 3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views. If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state. What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." 4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence. "The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me. — Eugene Volokh teaches First Amendment law at UCLA School of Law.

December 9, 2002, 11:34 PM	#7
TheBluesMan Moderator Emeritus Join Date: June 15, 1999 Location: Ohio Posts: 7,558	Sprout, You should consider yourself lucky/blessed. Dr. Volokh is among the most brilliant minds in the field of constitutional law today. Thankfully, he is a prolific writer and there is a ton of his work on the 'net. http://volokh.blogspot.com Enjoy his class! __________________ -Dave Miller ΜΟΛΩΝ ΛΑΒΕ! NRA Certified Instructor: Pistol, Rifle, Shotgun, Home Firearms Safety, Personal Protection. Tick-off Obama - Join the NRA Today - Save $10

December 9, 2002, 01:06 AM	#3
Sprout Member Join Date: August 17, 2002 Location: Los Angeles, California Posts: 43	I'm in Volokh's Firearms Regulation class this semester. Really, really, smart guy.

December 9, 2002, 04:00 PM	#5
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Don't forget to click on the link and read the story there as long as it remains up. Organizations have no incentive to post those types of stories if few people read them and they can see how many readers follow particular stories.

December 9, 2002, 04:09 PM	#6
Cuchulainn Senior Member Join Date: November 13, 2002 Location: King Conner's castle Posts: 315	Reading Volokh sometimes can be like watching a martial arts grand master. I love the way he uses the "momentum" of the antis' theories against them.

December 10, 2002, 06:20 PM	#8
Sprout Member Join Date: August 17, 2002 Location: Los Angeles, California Posts: 43	TheBluesMan, I know. This is the second class I've taken from Volokh; I took his First Amendment class last year. When I found out he was teaching Firearms Regulation I jumped for joy. He's not only very smart, and one of the clearest writers I've read, but he's quite a nice guy as well. Halfway through the year we had a Q&A with an ATF agent and took a field trip to the gun range. Fun class.