Lessons from McDonald v. Chicago
Both are necessary. Winning presidential elections means sympathetic justices, and scholarly research means arguments that stand up well at oral arguments and in decisions. You can’t do just one and expect victory. You have to do both.
Elections are short-term; building up a body of scholarly research is long-term. As an example, I started preparing for McDonald in 1991, when I began writing For the Defense of Themselves and the State (1994). I wrote several other books that prepared the groundwork (some of them not even gun-related, such as Black Demographic Data, 1790-1860 (1997)), because they had information in them that I thought would be necessary for other books that I knew that I would have to write.
There’s a lesson here for conservatives. Conservatives have been losing the battle for the Constitution for several decades now — and sad to say, this victory in McDonald wasn’t a conservative victory, but a libertarian victory. The Cato Institute pushed it — at a time when the NRA (probably correctly) didn’t think it was winnable in the courts. It is quite apparent to me that social conservatives have been focused on trying to win popular support for their positions in order to win elections. That’s fine; it is necessary and it is how a republic is supposed to work. But it isn’t enough. Social conservatives need to be funding historical and legal research to defend their positions — and if they want to win, this needs to be a long-term strategy. Writing briefs for a Supreme Court case is a short-term strategy; having conservative historians accurately and carefully argue the conservative point of view is absolutely necessary. Sad to say, social conservatives have shown no interest in the subject — and if they do not start to move forward now, it is going to be too late.
Let us not forget the original purpose for the Second Amendment. It was never intended for the purposes of hunting, as an out doors sport of shooting skeet or a collective right to power political dissent. It was in fact placed there for the protection of the State and it’s citizens, their natural rights and the ability of “Men” to protect one another against a tryantical oppressive mentailty of those in current power in the Federal Government.
Regardless of one’s political affiliations, the right to “keep and bear arms” is as natural as the right to freely breath. And it shall not be infringed, period. Why after 234 years of independence from tryanny and agression from within, are there so many that look past the States Rights and the formation of the Federal tryanny is there even an arguement. The States and the 10th Amendment is a guarentee against this very incroachment of individual liberties. Maybe this arguement has been wrongly addressed and formed for too many years that the States, and it’s citizens, have forgotton their individual responsibilities, therefore, have had to resort to organizations such as the NRA, National Rifle Association, the GOS, Gun Owners Association, etc. for our relief and the justification of our Natural Right to self protection, that we are in the mess we find ourselves in this day. The arguement has been framed in the wrong context for far too long, it is time we assert our individual rights over that of the Federal Government and accept nothing short of them staying out of our personal business in regards to self defense, it’s not in their right to protect us from ourselves, this is our individual right and that tool we use in this self defense also gives us, We the People, the right to defy even them. They just don’t like or cannot understand We don’t need their help, afterall, this would leave them without their precieved power over us.
The main point – that social conservatives need to engage the academy and pursue serious and accurate scholarly work in history, political philosophy, legal history and theory – is indubitable, but I think it goes against the grain. The sorts of scholarly arguments that would be necessary to compete in the marketplace of ideas, not so much to convince scholars on the left, but to be taken seriously and have a chance of appealing to those who are neither committed leftists nor social conservatives, require serious commitments to what used to be called objective scholarship over time. They require eschewing arguments to religious authority: regardless of the merits of any such argument, it will simply not be taken seriously.
Another difficulty lies in the tension on the right between the desire of social conservatives to use the power of the state to arrest the leftward drift in the culture, and the essentially classical liberal nature of our founding documents. Our Founders’ thinking (insofar as one can speak of such diverse men as a group) was a curious blend of mostly nonconformist Protestant ideas about equality combined with reliance on the natural law concepts widely prevalent throughout early modern thought and with the ideas of the (primarily French and Scottish) Enlightenments.
Social conservatives unfamiliar with this history failure to understand the difference between a community enforcing a moral code by social sanction (and where those who disagree are free to seek a community more suited to their tastes) with the use of the power of the state (and one cannot practically move elsewhere to avoid the reach of the national state) to enforce that moral code through the criminal law.
To a significant extent, whether we like it or not (and I often don’t), most of the court decisions overruling laws in ways social conservatives find odious, come after the breakdown of earlier societal consensuses that put the behavior beyond the pale of acceptability in the first place. Without a societal consensus, those laws would not be generally accepted or enforced everywhere even if the laws were to be reenacted and upheld.
It would be far more useful to place energy into building what I think is the more achievable consensus with those who neither support the extreme positions of the left in attempting to destroy society nor the attempts of social conservatives to criminalize behavior they find offensive, to return these kinds of decisions about behavior to state, and even more to local, levels, to restore the kind of local variation and self-governance that was so admired by those who observed and wrote on the early republic, like Alexis de Tocqueville.
I question how a city or a state can interfere with any amendment to the constitution without bringing federal troups down on their heads. Maybe when these Democrats are replaced this will happen.
My take on the Second Amendment says that the Citizens of The United States of America have the Right to own and bear arms for the protection of the freedoms and rights outlined in the Bill of Rights, and that the Citizens are tasked with the responsibility to defend the Nation from any attempted incursions or ‘coup’ from an oppressive government; Precisely befitting the conditions being forced upon the Citizens by Washington D.C. at this very moment.
To summarize: Washington D.C. wants to disarm their most vociferous opponents, to reduce resistance to their complete seizure of power.
Where I would differ from CatoRenasci is that the Framers’ state governments were indisputably using state power to enforce moral codes: laws against homosexuality, adultery, and obscenity, were all common. Laws actively promoting religion (and in many states, state establishments of religion) were also common. Even at the national level, there were laws that actively funded and encouraged religion, such as mandating that one section of every township in Ohio Territory be used for the funding of whatever church a majority of the township picked.
In addition, the collapse of societal consensus on many moral issues was driven by the repeal of laws that discouraged or punished immorality. That goes both ways: liberals like to talk about the “educative power of the law” when it comes to racial discrimination laws–but don’t see that there could be a similar effect with respect to other forms of individual behavior.
Clayton Cramer, you still have not apologized to Bill Perron for your false statements regarding hemp, the U.S. Constitution and the Declaration of Independence. It takes a real man (who can walk the walk, not just talk the talk) to admit and apologize when he is wrong, so far you’ve done the wimpy thing.
There’s a word for someone who hijacks a discussion with a completely different topic. It’s not polite. Let’s not go there. If you have a problem with the author, man up and discuss it with him. Offline.
I would but Clayton Cramer refuses to “man up”. MarkD why don’t you “man up” and just say what that impolite word is, mealy mouthing is not “manly”.
Bill, you might want to refer to point #2 on the comments policy.
I don’t disagree that at the time of the Founding state and local governments (and in more limited circumstances) were using state power to enforce moral codes, but, I would argue strongly that the ability of individual local governments to attend to these matters with more or less vigor, and the ability of citizens to vote with their feet in a country with vast available territory for settlement created a very different environment. If one didn’t like the local consensus (as I pointed out), one could pick up and move – usually to the West.
I would argue historically that the legal prohibitions you refer to followed the moral consensus – since in most colonies the laws were either taken as being essentially contemporary English law or agreed among the local electors – rather than forming that consensus. I suspect that we are both correct as far as it goes and that in any given place which influenced which could vary and even in a given place could vary from time to time. History is rarely so clear as we might wish it to have been.
I did point out that by the time of the Revolution, ideas had become part (but not all) of our national consensus that were more libertarian in essence (perhaps better “classical liberal”). Moreover, over time, as the consensus has broken down in society, the law has changed.
My main point was that in the absence of a national consensus on many of the issues dear to social conservatives, it makes more sense, and would be closer to the Founders, to focus on returning the locus of these decisions to more local levels so that local law can reflect local consensuses, and to emphasize that social sanction is probably most effective as a sanction on a local level.
My sense is that social conservatives could better create a consensus that would permit them to live pretty much as they choose (so long as they’re willing to leave others to similarly live as they choose) and focusing on building a national consensus for morally restrictive legislation – as opposed to permitting local variations – is a waste of resources and tends to push people who could agree with them on fiscal and defense matters, and such things as the Second Amendment, into the arms of the Democrats.
should have been (and in more limited circumstances the national government)
The problem with social conservatives operating at a local level is the nationalization of so many issues by the federal government, and to some extent, the Supreme Court.
For example, the insanely high standards SCOTUS applies to “separation of church and state,” and the patheticly non-constitutional argument for Roe-V-Wade make the issues national.
When a state university cannot fund a Christian group but can fund all manner of other offensive groups, it is the Supreme Court that made it so.
Hence social conservatives need to operate at the national level – to put in Presidents who put in constitutionalists instead of progressives into the Court.
Even the McDonald case presents a federal intrusion into state sovereignty, unfortunately using the expansive Due Process clause of the 14th. This is the same dangerous path which SCOTUS has used for some of its most objectionable socially permissive rulings.
To be sure, th 14th was an Amendment to the Constitution, and as such, represents a legitimate constitutional limit on state sovereignty. However, the abuse of this has largely been at the cost of social conservatism, and only changing the makeup of SCOTUS, or more radically, getting a congress that would remove SCOTUS authority in some areas (a power clearly stated in the Constitution) is necessary. The latter is a dangerous path, but was used in the last decade.
“My sense is that social conservatives could better create a consensus that would permit them to live pretty much as they choose (so long as they’re willing to leave others to similarly live as they choose) and focusing on building a national consensus for morally restrictive legislation – as opposed to permitting local variations – is a waste of resources and tends to push people who could agree with them on fiscal and defense matters, and such things as the Second Amendment, into the arms of the Democrats.”
I’m confused: for the most part, social conservatives do want local variations on morally restrictive legislation, not national legislation. With a few regrettable exceptions, social conservatives have consistently favored returned matters of morality to state governments. It has been liberals that have insisted on replacing state laws with court decisions that overrode state laws (such as Roe v. Wade) and national legislation in areas that are properly state authority (if any) such as antidiscrimination laws.
That is not my sense at all. Social conservatives seem to want things like national bans on abortion and a Constitutional amendment against homosexual marriage. Liberals seem to want these national prohibitions on laws restricting abortion or homosexual marriage.
“Social conservatives seem to want things like national bans on abortion and a Constitutional amendment against homosexual marriage.”
Sorry, but you are going to have to give some specifics. Conservative opposition to Roe v. Wade was that it gutted all state laws restricting abortion. There have been a number of state constitutions amended to clarify that marriage is one man, one woman, as an attempt to prevent judges from finding such a right. I would support an amendment to the U.S. Constitution clarifying what shouldn’t require clarification: that judges may not find a right to homosexual marriage hiding somewhere that no one ever noticed before.
Clayton,
Not so:
School Prayer
Flag Burning
….
I could go on…
I was originally a Reagan/Goldwater Republican. The evangelicals hijacked the party and tolerated no dissent from their theocratic horse crap. I joined the Libertarians and have been happy, if unelected, since. I remember when the GOP was “destined” to be the dominant party in the US. The holy rollers got arrogant and effed that up. You have yourselves to blame.
“Clayton,
Not so:
School Prayer
Flag Burning”
Are you referring to attempts to amend the Constitution to clarify that school prayer was not a violation of the establishment clause? Very clearly, the Lemon decision was wrongly made, and runs contrary to the original intent of the Framers.
I don’t agree with those intent on the flag burning amendment. I happen to think the Court got this one right, simply because symbolic speech was recognized as protected. Professor Volokh has written a very persuasive law review article demonstrating this.
But in both cases, conservatives upset about this pursued the right approach: amend the Constitution, don’t just make stuff up as convenient from the bench.
“I did point out that by the time of the Revolution, ideas had become part (but not all) of our national consensus that were more libertarian in essence (perhaps better “classical liberal”). Moreover, over time, as the consensus has broken down in society, the law has changed.”
That’s why at the time of the Revolution, homosexual sex was a capital crime in all but one state, and a felony in all? Adultery was a crime. Every state had criminal libel laws, and imprisonment for debt was still quite common. Most states still recognized slavery (although this starts to go away during and immediately after the Revolution in some states). Most states limited officeholding to Christians; some limited it to Protestants. This doesn’t sound very libertarian to me.
You have an interesting point, given that the McDonald decision is a two edged sword. First, it was five to four, and nothing is immutable–staffing does change on the Supreme Court. Secondly, now that it’s open season in the Supreme Court on how the second amendment gets applied, it’s pragmatic value could turn out to be quite meaningless because of future court decisions. Ultimately the value of your point about developing a historical consciousness depends on its manifestation in congress–only congress can re-staff the Supreme Court for good cause through impeachments.
With respect to the task of defending freedom and promoting limited government, social conservatives are guilty of a lot more than merely failing to produce academic research.
In the first place, the position that social conservatives take on a variety of issues makes a hash out of the very concept that is the foundation of freedom and limited government — the concept of individual rights.
Consider the inconsistencies and contradictions:
On the issue of abortion, social conservatives argue that an undifferentiated mass of cells in the womb not only possesses the same individual rights as an actual human being, but also possesses rights that trump the mother’s right to her own body. Thus a mere potential human being is held to have greater rights than an actual human being. Here rights are held to be a function of the level of biological development, with the less developed entity allegedly possessing greater rights.
On the issue of immigration, social conservatives hold that those born north of the Rio Grande possess the rights of man, while those unfortunate enough to be born south of the Rio Grande do not. Here rights are alleged to be a function of the geography of birth.
Social conservatives hold that heterosexuals have a right to serve openly in the military and the right to marry while homosexuals are denied both. Here rights are alleged to be a function of one’s sexual orientation.
Such views utterly contradict the very notion of universal and equal rights possessed by all, thus effectively rendering one impotent to offer a coherent, persuasive case for freedom and limited government.
But the damage done by social conservatives is not limited to the confusion they spread over the issue of rights. Equally damaging is the manner in which social conservatives promote faith as grounds for their positions.
Opposing things like stem cell research and cloning research — while promoting things like the teaching of creationism — all on the basis of faith — is absolutely fatal to conservatism’s intellectual credibility. To promote faith as the basis for one’s positions is to concede that that one cannot find any reasons supporting one’s position — with the clear implication that reason rests with the other side in the debate.
Taken together, these contradictions, inconsistencies and concessions by social conservatives constitutes intellectual pollution that seriously undermines any effort conservatives make to defend liberty and limited government. It’s no wonder that liberals and leftists — despite being in the minority — have nonetheless succeeded in destroying American capitalism and erecting in its place a vast regulatory/welfare state. With such intellectual poison contaminating their views, conservatives never had a chance of stopping it. And they’ll never have a chance until the social conservatives are removed from the message.
Michael, Governmental rights are VERY MUCH a function of geography. I have four children and they have a right to live in my house. Other peoples children DO NOT have a right to live in my house. If I choose to allow someone else in, that is MY decision. Even disregarding the horror of the welfare state which forces taxpayers to pay for social services for ILLEGAL ALIENS, every country has the right to determine its own immigration policy. Do we want to US to have the population density of Bombay (oh, sorry, it’s Mumbay or something now).
The abortion issue is a scientific as well as a moral quagmire. You criticize those who want to give rights to a blastocyst, but what is YOUR bright line? Infanticide? Is abortion OK one week prior to the EDC (estimated date of “confinement”). What about a two year old? They can’t really take care of themselves without intruding on the “rights” of some adult or other.
The concept of “Universal and equal rights possessed by all” does not require me to care for others whether they be from across the street or from Guatemala. The abortion issue is fundamentally unsolveable so don’t squawk about it unless you are willing to give your timeline for recieving “universal and equal rights” and be able to justify it.
Michael, Governmental rights are VERY MUCH a function of geography. I have four children and they have a right to live in my house. Other peoples children DO NOT have a right to live in my house. If I choose to allow someone else in, that is MY decision.
You illustrate perfectly the confusion over rights in the minds of conservatives.
Your right to control who enters your property is clearly NOT a function of where that property is located. You control who can enter your automobile — whether the automobile is parked in your driveway or has been driven across the continent. So you see, your right to control your own property is NOT a function of where the property is located at any point in time.
Your further state:
Even disregarding the horror of the welfare state which forces taxpayers to pay for social services for ILLEGAL ALIENS, every country has the right to determine its own immigration policy.
No, “the country” — as represented by the government or the “majority’ — does not posses the right to dictate who may for may not enter the homes of all the people living in the nation. You yourself just stated:
If I choose to allow someone else in (other than my own children), that is MY decision.
And indeed it is YOUR decision. Nothing justifies the notion that your neighbors have a right to VETO your decision and instead impose their own notion about who should or should not be allowed into your home.
And you wrote:
The abortion issue is a scientific as well as a moral quagmire. You criticize those who want to give rights to a blastocyst, but what is YOUR bright line?
My bright line is the moment of birth — it is at that time that a human *being* comes into existence. Prior to that, it is not a *being* of any sort — it’s a body part.
If conservatives wanted to argue that late-stage pregnancies involve entities that classify as human beings, that would be a far more rational, defensible view. But the desire to ban abortion altogether, including in the first trimester, is completely irrational and indefensible.
It’s also a massive turn off for millions of voters otherwise sympathetic to conservative positions.
You also state:
The concept of “Universal and equal rights possessed by all” does not require me to care for others whether they be from across the street or from Guatemala.
Agreed completely — no one has the right to demand that others be forced to care for them. But this happens with immigrants far less than you’ve been led to believe.
See here for instance: http://reason.org/news/show/122411.html
If conservatives had been willing to fight the creation of the welfare state the way they are now willing to fight to keep out those whom they’ve been mislead into perceiving as a threat — then we wouldn’t be burdened with the massive welfare state we presently have.
But having lacked the moral courage to oppose each addition to the welfare state, conservatives have now implicitly accepted the welfare state as “necessary” and “justified” and are fighting a rear-guard effort to keep down the numbers of people receiving benefits. That’s a losing strategy, as the last 30+ years demonstrated.
“If conservatives had been willing to fight the creation of the welfare state the way they are now willing to fight to keep out those whom they’ve been mislead into perceiving as a threat — then we wouldn’t be burdened with the massive welfare state we presently have.”
The welfare state is hundreds of years old. In English secular law, it dates back to the Poor Law of Elizabeth I. It is part of the Christian tradition to the beginning of the faith. Keep attacking the concept, however: it will be very effective at making you anethema to 80% of the population of the U.S.
The extremes and absurdities of the welfare state that liberalism brought to it starting with the Great Society are not popular; the notion that the government has some obligation to provide basic needs for those who are unable to care for themselves enjoys enormous support. And guess what? It’s not even very expensive.
Your arguments don’t have much to do with the Constitution or the government of the Framers. The only “limited government” that the Framers supported was at the national level. State governments were limited only by those restrictions included in state constitutions, and powers reserved to the national government by the U.S. Constitution, or prohibited to the states by the U.S. Constitution.
Your arguments don’t have much to do with the Constitution or the government of the Framers. The only “limited government” that the Framers supported was at the national level.
And this is merely another example of a conservative argument that is deadly to the cause of freedom and limited government — the notion that “states rights” means that if the voters of a state so decide, the state may properly violate the rights of the citizens living there.
It should be obvious that if government at one level can claim the right to violate the rights of the citizens, then those rights are useless and may, logically, be violated by government at any level. Either one’s rights are inalienable and inviolable — or what one possesses are not rights at all, but merely *permissions* granted by a government that may withdraw that grant whenever the majority so wishes.
As I said, this is merely another example of a conservative position that obliterates the concept of individual rights and renders a principled defense of liberty and limited government impossible.
“And this is merely another example of a conservative argument that is deadly to the cause of freedom and limited government — the notion that “states rights” means that if the voters of a state so decide, the state may properly violate the rights of the citizens living there.”
You are making a libertarian argument. That’s fine, but it doesn’t have a lot to do with the Constitution, which is not a libertarian frame of government–and even less so, the state constitutions of the period.
State constitutions of the period sometimes have a bill of rights included, and sometimes not. Even those with a bill of rights were not the libertarian societies that you imagine.
“Opposing things like stem cell research and cloning research — while promoting things like the teaching of creationism — all on the basis of faith — is absolutely fatal to conservatism’s intellectual credibility.”
This shows a rather severe stereotyping of social conservatives–rather like assuming that all libertarians are atheists/homosexuals/wife swappers.
Clayton Cramer wrote:
This shows a rather severe stereotyping of social conservatives–rather like assuming that all libertarians are atheists/homosexuals/wife swappers.
How is it “stereotyping” ? I didn’t make any such claims as “atheists/homosexuals/wife swappers”.
I merely point out that when one resorts to *faith* as a basis for one’s positions, one is conceding that one cannot support one’s positions with *reason* — that *in reason*, there is no reason for one’s positions — that *reason* rests with those taking the opposite position.
If abandoning *reason* in favor of the utterly *arbitrary* realm of *faith* does not damage one’s intellectual credibility, then I cannot imagine anything that could.
You are assuming that social conservatives base their politics on faith. While many social conservatives are indeed faith-based, there are some that are not–and even those who are Christians but do not build their entire political philosophy on that.
In in very many occurrences of discussion, failing to apprehend and factor into an argument, the long-standing class-room definition of life and consciousness: “demonstrates motility and response to aversive stimulus”, the stroke in the “undifferentiated mass of cells in the womb”, cuts the speaker’s argument asunder, . . .
PhillipGaley wrote:
. . .failing to apprehend and factor into an argument, the long-standing class-room definition of life and consciousness: “demonstrates motility and response to aversive stimulus”, the stroke in the “undifferentiated mass of cells in the womb”, cuts the speaker’s argument asunder, . . .
Nonsense. The issue is not whether or not the undifferentiated cells are alive — clearly they are, like every cell in your body — the issue is whether or not those cells consititute a human being. And they clearly do not.
How can you say that the “undifferentiated” cells “clearly do not” constitute a human being? *Especially* since differentiation begins shortly after conception?
Using conciousness as a criterion for determining whether or not someone is human is also a dangerous precedent: do we consider people in a coma to be non-human? If so, can their rights be violated with impunity?
And why is birth such a clear demarcation? Babies have survived being born 20 weeks prematurely; indeed, my son was born one week prematurely. Why should my son have a right to life (as a result of a C-Section) while my daughter, who was born five days late, have no right to life, simply because she wasn’t cut out of the womb earlier? (She was also born a C-Section; we were attempting a vaginal birth after my wife’s first c-section.)
The thing that has always disturbed me about the so-called “Pro-Choice” people is their willingness to arbitrarily determine when someone can live, or when they could die. That, and their justifications of “these children will generally be unwanted, born into poverty, and live lives of utter misery.” How could such justifications be perfectly fine before someone is born, but reprehensible after he is born?
I have stated this before, and I will again:
The Curse of Slavery will be our un-doing. It is the Original Sin that, unfortunately, renders the rest of “The Constitution” (to those pre-disposed to believe) as a non-sacred “living” document, in need of upgrade change and re-interpretation as our mood sees fit.
Since a specific, emumerated portion of our precious Constitution was so obviously flawed (I’m being kind, it was flat out WRONG), nothing in the rest of it can be regarded as perfect, inviolable…its all up for grabs as the liberals see fit.
And that is the crying shame of our Founding Principals. The fatal flaw that allows ALL of them to be destroyed, eventually.
Double Jeapordy? If the State cant get you, the Fed’s will try, then the ambulance chasers will feed on whats left of your carcass.
Fourth Amendment? Ask the children of the Branch Davidiens that one.
First Amendment? Not for “Hate Speach”
Due Process, Rule of Law? Ask the Tobacco Companies how it feels to cry fairness while “politically unpopular”
Remember, the Government has one insatiable appetite, and that is control. They are far more concerned about collecting (high north-eastern region property) taxes than they are with your rights or safety.
Crime does not affect the Government, it affects YOU.
YOU, asserting your rights, and protecting yourself with FORCE, are a greater threat to the government than all the Gang Bangers combined. They accept, even profit from, the administration of crime with high budgets and crony jobs. The bigger the crime problem, the larger the budget, and the greater expectation of power on their behalf.
A revolving door of bail jumpers (see Philly one billion $ owed, while taxes go up & up) is of no concern to them, they’ll simply hire more “administrators” to “look into the problem”.
But let an Individual defend themself, and everyone from the beat cop, to the local prosecutor, to the mayor will fall upon you, you “vigilante”, who dared to “take the law into your own hands”.
You did not recognise The State as your Lord and Master.
You acted without THEIR approval, without fear of THEIR authority, you dared to have contempt of THEIR Power and regard your life as your own.
And the typical Liberal Government Union employee, whether Judge, Cop or Councilman, will see you as a threat to the way “they” think the world should run. And “more guns on the street” is the exact opposite of what every school teacher thinks should happen. And since “The Constitution” was a flawed document, with some obviously bad parts that needed to be changed, the 2nd amendment makes as much sense to them as “3/5 ths” does to you or me.
Slavery. The Circular Curse.
Because we stained the greatest Document of Mankind with it, there are those who will always claim it is nothing, nothing we dont want it to be, as we want it to be….
They have no pause or reverence for whatever else its proclaims, and they will lead us back to Slavery, AGAIN.
Slavery was a British introduction to the colonies. Americans took from 1776 to 1865 to get rid of this British institution. This is history you should consider in your “curse”.
Name anyone descended from world history who was never a slave or slave hold. We may all bear that curse, as you call it, yet we have continuance.
Keep in mind that the U.S. Constitution never used the word “slave” until after the Civil War. It refers to those “bound to service” which includes not only slaves, but indentured servants and apprentices. The reason for this curious care was both embarrassment about slavery (even by slave owners) and a belief that slavery was likely to go away in a generation or two. As it happened, the power of Congress to grant patents brought slavery back from its deathbed.
But yes, slavery corrupted many of our institutions. It is a curse.
The Constitution is a foremost a structural document. Politically, the result of the Progressive effort since Reconstruction has been the steady centralization and rationalization of law and legal enforcement. This has been a structural cause of changes in the law and enforcement policy, politically — one-size-fits-all fits none terribly well, or at all. The lowest common denominator in human affairs, it turns out, is very low indeed.
Only a change in POLITICAL structure (NOT institutional structure) can alter this tilt of the playing field from the center back to the periphery. The Judiciary has been toothless to curtail the administrative state. Reagan showed that the Executive branch alone cannot effectively use the administrative state to undo the administrative state. Gingrich and the ’94 Republicans showed that the Legislative branch cannot use the administrative state to undo the administrative state.
The answer lies defining WHAT the administrative state is under the Constitution — and then using something outside the administrative state to commence its POLITICAL unwinding into more manageable parts.
The administrative state is a collection of law enforcement entities. Even acknowledging their legislative rule-making functions, their effectiveness depends upon that law enforcement function to operate — as a political instrument (to benefit allies and punish enemies) — through the proxies of congressional oversight and budgeting.
That enforcement function has a history and a proper institution in the Constitution, and expressly discussed in their present form as “select” bodies in Federalist 29. Establishing their status under the Constitution will change the political influence over federal law enforcement — back to the States — and thus tilt the political field back away from the center.
The key questions under the Constitution are:
1) If a member of a federal law enforcement agency is not an “Officer of the United States” (see Steele v. United States, 267 US 505, (1925)), what is he an officer of ?
2) What sole and singular institution in the Constitution is given the function “to execute the laws of the Union?”
3) Who under the Constitution is supposed to appoint the Officers of that institution?
There is an answer to all of these questions — in the Constitution.
For G.R. Mead: While, an “administrative state is”, any state or nation in which The administrative law predominates (In this nation, although the national government is derived in administrative law, in most instances of, say, Oklahoma or California, etc., or for questions of national import, the jury is dominate.), for your term: “‘The’ administrative state” is any state wherein, the civil servants also, vote their own matters of largess; and, for an example at hand, with dispensation of “the vote” to our governmental employees, the USA fulfills your: “The administrative state”—a state which is, of the administrators / people, by the administrators / people, and for the administrators / people. No surprise then, that, in one way or another, 60% of our citizens are on the form of public cost, and of only to mention their money “take”, that being 60% over the average prevailing private sector; though coincidentally, fulfilling one part of Gibbons’ description of Rome: “The administrators / people learned how to vote themselves largess from the public treasury.”.
Parenthetically perhaps, recently, Puerto Rico’s governor Luis Fortuño—SHADES! OF RONALD REAGAN—thought it helpful to lay off 24,000 government employees.
And all of this to say that, as to why for so very many, simple matters of gun-control and what stands as “constitutional” or no, are so perplexing, there may be deeper causes in affect, . . .
This was a 5 to 4 decision and may tread ground but is not a win, Perhaps a class action civil suit against the State and city by people that have been robbed and assaulted by armed criminals and have been unable to defend themselves due to the state and city laws.
Part II of the Chicago decision was for Chicago to pass even more stringent anti-gun laws. The reason given for part II was the high number of street murders.
To me, the problem of street murders was the symptom which was covered by the old time political need to keep their population controlled by a co-dependency on the police. That was the classical ‘bandaid on a bullet hole’ distraction from the historic atmosphere of Capone thugery and machine politics.
Heller and McDonald are not about social conservativism at all. They are about constitutional conservativism – the belief that the Constitution means what it says, and doesn’t mean what it doesn’t say. This implies the rejection of the poisonous concept of the oh-so-flexible “living Constitution” and its “emanations of penumbras.”
Social conservatives are as bad as liberals, to the extent that both try to force their own prejudices on the rest of American society by manipulation of our understanding of the Constitution.
“Social conservatives are as bad as liberals, to the extent that both try to force their own prejudices on the rest of American society by manipulation of our understanding of the Constitution.”
When you mean that someone tries to impose a false historical background onto an argument for a particular public policy, you could well be right. For example, attempting to pass a federal law prohibiting abortions that take place within a state, was very popular with some social conservatives–even though it was a clear violation of the Constitution’s division of powers. But if you mean that social conservatives want to use the government to impose a particular moral code within a state–that’s what the Constitution provides. Whether a particular law makes sense or not is a separate question from whether it is constitutional. Laws prohibiting sodomy are clearly constitutional, although silly; I would not support passage of such laws.
Are you saying that the decision’s results are libertarian instead of conservative, or are you merely saying that libertarian groups get the bragging rights for the victory?
If you are saying that the actual decision is in some way libertarian rather than conservative, I would be interested in seeing you make that case. However, if your complaint is that conservative groups are not fighting the good fight, perhaps this case demonstrates that they don’t need to expend their resources in this area, as there are others to take up this fight, and that conservatives would be further ahead in focusing on other areas that are lacking a strong champion?
It is libertarian in that it empowers People over the State, and is a restriction on State power.
“If you are saying that the actual decision is in some way libertarian rather than conservative, I would be interested in seeing you make that case.”
I am not saying that. The decision was one of those areas where conservatives and libertarians can raise our hands together in triumph. There was a mixture of conservatives and libertarians (and even a few liberals) doing scholarly research for the last few decades that made this possible. Conservatives have largely dropped the ball on supporting the kind of scholarship that would make most social conservative positions constitutionally defensible.
Conservatives have largely dropped the ball on supporting the kind of scholarship that would make most social conservative positions constitutionally defensible.
You’re completely misreading the process of “law”. Left-wing political views did not take over the American courts because of the superb quality of the thinking and scholarship behind them. They did it because the left (and frequently, the right) have been placing people with left-wing political views in position to interpret the law and the Constitution for the last sixty years.
The Supreme Court is not the School of Athens, an arena where ideas are tested and the best come out on top. It’s as intensely political a body as the House or Senate, and votes there break down on predictable political lines.
Change the makeup of the court and you change the rulings, regardless of the merits of any case. This is a game of power, not of learning.
The Supreme Court did not concoct a constitutional right to an abortion because social liberals presented better arguments to it than the social conservatives did. The Court did what it did because it wanted to and because it could.
“Left-wing political views did not take over the American courts because of the superb quality of the thinking and scholarship behind them. They did it because the left (and frequently, the right) have been placing people with left-wing political views in position to interpret the law and the Constitution for the last sixty years.”
For justices who are rigid ideologues, no question. But look at justices who are in the middle, and often provide the swing vote, such as Justice Kennedy. You need to persuade them–and you also need to provide material that lets justices who might be leaning your way feel more comfortable writing an opinion that supports their position.
As a pro-choice, pro-second amendment, anti-drug war, small government libertarian, this post makes me very happy indeed.
Like Tom Swift above, I worry about conservatives as much as I do liberals. Both sides want to control me, just in different ways.
Bull crap Patrick, that is simply not true whatsoever. I do not want to control anything about your lifestyle or your personal passions. What I want is to be able to defend myself against any and all intruders of my personal life. I want a fighting chance to shoot back if fired upon, I want you to have the same rights as anyone who is not against the laws of nature. I want you to be secured in your home and posessions, but most of all I want you to mind your own business and leave me the hell alone with my own miseries. Everyone goes through their personal hells in life and the last thing I want to do is to interfere in your life. I am a social conservative but, I could really care less what it is you do, to whom or what because mainly if you are not bothering me and my life I promise I won’t come looking for you with a gun in my hands. Hows that for an understanding of self protection? Interfere in your life or rule you in one way or the other, pleaaaaaase, stop already with the fantsy’s.
Depending on what Patrick wants to do, there are plenty of social conservatives who see the government’s role as telling Patrick what to do: don’t kill an unborn child; don’t use meth; don’t ask the government to recognize your marriage to two guys, a girl, and a goat. In practice, liberals are the greater threat, because they have power.
Depending on what Patrick wants to do, there are plenty of “social conservatives” who see Patrick as wanting the government to tell them what to do: Don’t make life difficult for illegal immigrants, don’t pass laws against drugs or prostitution, etc.
There is nothing especially tolerant about the libertarian agenda, an agenda which is openly hostile to the entire notion of representative government. Liberals and conservatives at least give lip service to the idea that the people are sovereign, that idea at the core of the American founding. Libertarians want a benevolent tyranny. (Benevolent at least in their own eyes)
I would say the big problem with libertarianism is that it is indeed very tolerant–to the point where it makes excuses for sex with animals, torture of animals, justifies why same-sex marriage deserves governmental recognition, why meth isn’t a problem, and makes terribly clever arguments about why child pornography shouldn’t be illegal–just prosecute the person who made the child pornography. (This last wasn’t a completely ridiculous idea when there was some hope of tracking down the originator of it. In the age of the Internet? It’s nearly hopeless as a strategy.)
Governments exist for a reason: there are some things that are either impossible to do privately, or the costs or risks quickly become absurd. Libertarianism has a lot of interesting ideas, and if not carried to ridiculous extremes (Hertz Atom Bomb Rental: just sign this contract promising not to use it in populated areas), has some merit. The problem is that the same ideological purity that drives some libertarian activists makes it completely inappropriate for the real world.
Conservatives have been losing the battle for the Constitution for several decades now — and sad to say, this victory in McDonald wasn’t a conservative victory, but a libertarian victory.
It’s funny that you can say this, after admitting earlier that it was George W Bush’s justices on the Supreme Court which made the difference and not the Cato Institute. Was Bush a “libertarian victory” as well?
Bush’s appointees certainly made this possible–but Justice Kennedy–who at times exhibits an inconsistent libertarian streak to him–was a part of this as well.
It’s news to me that Kennedy has a “libertarian streak”. I hope libertarians won’t try to claim ownership of his infamous “sweet mystery of life” passage.
In any case I’d prefer that justices on the Supreme Court be devoid of any liberal, libertarian, or conservative streak and simply interpret the Constitution as it is and not as they think it should be.
Yup, there’s a lot of semi-libertarianism about Justice Kennedy. Hence the “sweet mystery of life” and his willingness to overturn the Louisiana law that capitally punished rape of a child.
If you listen to the audio of the oral argument in Heller, you’ll hear the Cato sponsored libertarian “hero” Gura groveling and begging the court to abandon the right of 300 million Americans to keep and bear militia/military weapons in exchange for the right of D.C. residents to keep a six shot .38 special in their house.
Victories are won one piece at a time. You might want to read some of the history of the civil rights movement; one slice at a time until one day: Brown v. Board of Education.
I totally agree with one step at a time, Clayton. I just think Gura’s eagerness to assure the Court that it was perfectly OK to ban “machine guns” was gratuitous and uncalled for.
Going from memory here, but I think Scalia brought him up short and told him as much.
I’m glad we won Heller and McDonald. I’m wary of what seems to be the drift to de-emphasize militia weapons in favor of government approved and registered handguns for individual self defense.
Don’t confuse a strategic retreat with a surrender. Alan and I talked about this whole issue at great length. I’m working on a paper to deal with this issue as time permits. (Unfortunately, I have to make a living as well, so scholarly research is lower priority. Making money has to take precedence over what’s important.) Did you know the New York Times bought Gatling guns for the lobby during the Civil War, to protect themselves from violent war protesters?
This is an issue on which libertarians and conservatives (of all stripes) can find common ground. Why thump your chest, claim victory for libertarians, and denigrate conservatives???
Focus on the the common opposition: A radically Progressive Obama administration that has declared war on the Constitution. This is a time for addition and multiplication on the right — not subtraction and division.
“Why thump your chest, claim victory for libertarians, and denigrate conservatives???”
I’m not denigrating conservatives: I want them to take the cause of the Constitution seriously enough to fund scholarly research. At least I want them to be willing to spend money on it at the same level that libertarians do.
“However, if your complaint is that conservative groups are not fighting the good fight, perhaps this case demonstrates that they don’t need to expend their resources in this area, as there are others to take up this fight, and that conservatives would be further ahead in focusing on other areas that are lacking a strong champion?”
I’m saying that in this case, libertarian groups did much of the heavy lifting. Conservatives need to start doing some of that on the causes that they care about.
Have CATO and REASON spent as much money on 2A research as the NRA? I’ll take your word for it if you know it to be true.
Seems to me that CATO and REASON spend more time, effort and money trying to obtain amnesty, welfare, food stamps, section eight housing vouchers and a Democrat party voter registration card for tens of millions of illegal aliens.
If they’re successful in that effort, the Second Amendment won’t be worth much.
Cato Institute funded the Heller lawsuit, and pursued it, vigorously. NRA, only grudgingly, went along. There are many aspects to what Cato does that irk me. I wouldn’t be so irked if there were a serious conservative equivalent.
Heller and McDonald are not about social conservativism at all. They are about constitutional conservativism – the belief that the Constitution means what it says, and doesn’t mean what it doesn’t say. This implies the rejection of the poisonous concept of the oh-so-flexible “living Constitution” and its “emanations of penumbras.”
And that is supposed to be different from “social conservatism”, how?
The “emmanations” and “penumbras” were concocted by the courts in making up a constitutional right to an abortion, in case you’ve forgotten.
“As a pro-choice, pro-second amendment, anti-drug war, small government libertarian, this post makes me very happy indeed.”
I’m sure it does. Conservatives are the ones that need to pony up the money to fund scholarly research for the causes that they care about. So far, I’ve seen no evidence of it.
One of the lessons is that elections have consequences. The election of President Bush in 2000 and 2004 meant that he was able to appoint justices who were sympathetic to originalist perspectives, and probably lean towards gun ownership as being good public policy.
Indeed. Meanwhile, libertarians were off voting for Badnarick or whatever his name is.
Scholarly research is important; even justices that are sympathetic to our perspective needed something to point to as evidence in support of the individual right. Quite a number of us have been researching the history of the right to arms for many years now, and the results of our work provided something that the justices could support without embarrassment.
No. No, no, no.
Four out of the five justices managed to vote against the “scholarly research”. Good scholarship does not carry the day on the Supreme Court. Having the right people on the court is what matters, and it’s ALL that matters.
Actually, no. There are two separate issues:
1. Does the 14th Amendment incorporate the 2nd Amendment against the states and their subsidiary governments? Five justices agreed with the substantial scholarly research that demonstrated that this was the case. (Four dissenters argued that too much freedom would lead to problems with law enforcement, unlike say, the Miranda decision, and that local governments should be trusted to make the right decisions–except about abortion, homosexuality, obscenity, and everything else that really matters to liberals.)
2. Is incorporation through the Due Process clause or the Privilege of Immunities clause? The scholarship made a strong case that P or I was the right answer–but the comments of justices during oral arguments show that it wasn’t that our evidence was weak, but that it would cause an enormous number of existing, often bogus precedents to be overturned. That’s why four justices were not willing to take the most correct answer. They got to the right result, but just not by the correct method.
Does the 14th Amendment incorporate the 2nd Amendment against the states and their subsidiary governments? Five justices agreed with the substantial scholarly research that demonstrated that this was the case.
I think you are missing my point. The “substantial scholarly research” had almost nothing to do with the outcome of this case. The makeup of the court determined the outcome here, as it always does. If Obama is able to replace a couple of the members of the majority in this case with his own people, future gun cases will be decided differently. And no amount of scholarly research will alter that.
Court decisions are sometimes won at the margins. It appears that Mr. Swing Vote, Justice Kennedy, is a pretty serious gun rights support. But what if didn’t care about the subject, or worse, was ambivalent? That’s where you need persuasive evidence.
Better a libertarian victory than a social-conservative victory.
Small-government libertarianism is the coat that politicians check at the door when they step into the halls of power and bottomless access to the taxpayers’ pocket.
It would have been a win if there was a 9-0 agreement with Justice Clarence Thomas’s wonderful concurring position. What we got is less than that, with 1-8 not reading the Constitution. One wonders who was the 1 who threatened to bolt if any others signed on with Justice Thomas.
Don, I don’t think you understand why four justices voted for SDP incorporation. Was it incorrect? Absolutely. But it would have opened up Pandora’s box, requiring hundreds of wrong precedents to be revisited. I would have looked forward to that (since most of these are liberal fantasy decisions), but I can see why four justices saw this as throwing a monkey wrench into the judicial machinery.
Elections are won at the margins. And the cycle runs this way: the socialists get in and ruin everything. Conservatives get elected. And they have dreams. That with the power of the government gun they can move the culture. The folks at the margin get sick of it and elect the socialists and the cycle repeats.
The defect of both parties as currently constituted is the belief in the efficacy of state power. And so no matter what party is in power the state grows. In one direction or another.
Smaller government means smaller government.
Culture is the province of the people. Not the government.
Good to see libertarian thought gaining traction. It is past time.
Libertarian thought remains a minority viewpoint in America. There’s a reason for that: carried to extremes, it doesn’t work, because it relies on intelligent people looking out for their own interests with the ability to see beyond tomorrow. It’s a fine theory, but I have not found a species for which it would work as an organizing principle.
What about Medeival Iceland? They had a system of private “cheiftans” that lasted for almost 300 years.
One of my frustrations with libertarianism is the way that its advocates cherry-pick history to imagine a world without government, misleading many. Iceland had a Parliament (the Althing) starting in 930 AD. At times, yes, it had less government than others. Perhaps you are thinking of this period:
Is it possible that conservatives don’t generally do scholarly because faith is enough for them?
This is a prime example:
http://scienceblogs.com/pharyngula/2010/07/frickin_electricity_how_does_i.php
Bob Jones University is about as typical of social conservatives as Code Pink is of the Democratic Party. My wife used to teach in a school that used Bob Jones University curricula. It was…amazing. And I don’t mean that in a positive way, either.
You’re calling believers in Christian Science “conservatives”?
Ha ha.
Also, Clayton Cramer has already busted someone else for trying to pull off that sort selective slam on conservatives.
If you think the university is a good idea, thank the Christians*. Like science? Again, thank Christians. To paraphrase the GEICO caveman, some people are upset that Christians didn’t invent the scientific method** soon enough for them.
* In particular thank Catholic Christians, the most conservative Christians of all!
** Bishop Grosseteste was the first to codify the scientific method.
Is it possible that conservatives don’t generally do scholarly because faith is enough for them?
This is a prime example:
http://scienceblogs.com/pharyngula/2010/07/frickin_electricity_how_does_i.php
I submitted the above comment and it doesn’t seem to have made it past the filters.
Give it a little time, this is a busy day in the editorial shop.
>> I’m confused: for the most part, social conservatives do want local variations on morally restrictive legislation, not national legislation. With a few regrettable exceptions, social conservatives have consistently favored returned matters of morality to state governments. It has been liberals that have insisted on replacing state laws with court decisions that overrode state laws (such as Roe v. Wade) and national legislation in areas that are properly state authority (if any) such as antidiscrimination laws. <<
I would disagree with this. Conservative, particuarly social conservatives want a different set of restrictive legislation at the national level than Liberals, but they want to control your life with broad nationally enforced legislation, just the same. The exceptions as you put them are not few. Only different.
“Conservative, particuarly social conservatives want a different set of restrictive legislation at the national level than Liberals, but they want to control your life with broad nationally enforced legislation, just the same.”
Examples? Social conservatives mostly want laws passed at the state level–which means leaving the national government out of the process. You can find counterexamples, of course, but look at who voted which way on Raich. Justice Thomas dissented, and most of the liberals argued for federal enforcement of the marijuana law where the state law was less restrictive.
Isn’t the Second Amendment Foundation deep into the scholarly research element you are talking about?
“Isn’t the Second Amendment Foundation deep into the scholarly research element you are talking about?”
I’m unaware of any research that SAF has funded. In any case, my point was that conservatives have not been willing (or perhaps able) to fund scholarly research.
Let me emphasize that this article was pointing out that social conservatives haven’t been funding research into issues that they care about. In spite of a lack of funding, a lot of research has been done on RKBA issues.
Clayton, just because you’ve been attempting to get wealthy conservatives to bankroll you and it hasn’t worked out is no reason to write this article. You certainly hinted at this at your blog. I have read (and paid for) one of your books and certainly appreciate your efforts on RKBA. That said, you ought to stick to what you know – software, scope rollers and the occasional history book. If you continue to make mistakes regarding legal matters (such as your take on New York v. Miln over at Volokh Conspiracy today [which opinion is no longer authoritative - see Smith v. Turner]) then serious people aren’t going to take you seriously. Stick to what you know, and law is not it. Maybe another history book?
With regard to SAF think LEGAL scholarly research. Legal scholars do exist you know? As in Bateman v. Purdue and Palmer v. DC and Sykes v. McGiness and in Pena v. Cid. Never heard of those cases? You will. They’re the next round of 2nd Amendment lawsuits coming up. Alan Gura is involved as is Don Kilmer whose names you should know.
As a general principle I agree that conservatives are too interested in winning elections, and not interested enough, in winning the hearts and minds of the populous to their causes. Though I hold no illusions that popular consensus has historically been an effective deterrent to activist judges. My view is that its primary power wrt constitutional law to the appointment of better judges.
My understanding of the state of second amendment research is that the major issue is disseminating the incredibly large body of history, research and common sense reasoning that goes with it. But then again second amendment issues never seemed very complicated to me. I’m curious what areas of scholarly research you think has been neglected for the second amendment in particular and for conservative causes in general. What specific areas of study and open questions would most benefit conservative causes if they were invested in?
On gun-related issues:
1. What arms were protected, based on the state of the law in 1868 when the Fourteenth Amendment was ratified? I’m working on that paper, as are others. But obviously, the more time available, the better.
2. What legal status was considered disarming in 1868? To my knowledge, only those actually locked up against their will were disarmed in 1968, but this is worthy of more serious investigation, since it would go a long ways to determining what are the appropriate limits of regulation today.
On conservative issues in general:
1. The establishment clause. There has been a lot published on the subject, pretty well demolishing the ACLU’s claims. But in particular, the use of federal funds in Ohio Territory for establishing churches might benefit from more investigation.
2. The free speech question. While the courts have generally not bought into the claims of the ACLU completely with respect to obscenity, they have done so enough to be quite dangerous, such as Ashcroft v. Free Speech Coalition.
You might want to go back and read the rest of the thread. If what is current precedent was all that mattered, gun rights activists would in a world of hurt: U.S. v. Miller. The point of originalism is to go back to what was understood at the time–and the Miln decision is far closer to the Framers’ time than more recent decisions.
SAF definitely funds a lot of useful lawsuits. But there’s considerable value to having work already published that isn’t specific to a particular lawsuit, you know.
One point often overlooked in the gun control arena is political geography. For example, a Privileges & Immunities theory may be more applicable in a rural setting, where gun ownership is often seen as a basic right and necessity for living. Contrast this with an urban setting like Chicago, where a Due Process theory may be more applicable, since administrative requirements such as mandatory registration may be more of a procedural concern:
http://lawblog.legalmatch.com/2010/07/09/new-gun-control-rulings-and-constitutional-implications/
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