"U.S. justices could decide constitutionality of gun ownership," reads the headline in the International Herald Tribune. But Supreme Court justices, no matter how they rule, if at all, in the DC gun-ban case, don't determine the constitutionality of anything. The Constitution does. It says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." I have heard conservatives argue that the Constitution only pertains to the federal government. I am unpersuaded. If true, this would make the Tenth Amendment redundant. Also, there is a deliberate difference in language between, say, the First and Second Amendments. The First, even though it is currently applied to the states and even localities, refers to a limitation on "Congress." The Second, even though state legislators and even Congress place restrictions on gun ownership, refers to "the right of the people to keep and bear arms." To find that the Second Amendment allows Washington, DC's government to prohibit gun ownership is to find the Constitution unconstitutional.

The 14th Amendment states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The relevance of this clause to the current case hinges on two questions: (1) What is a "privilege" in relation to a "right," and (2) is D.C. bound by Constitutional restrictions on "States"?

the tree of liberty needs to be cleanzed :)

"The Constitutionality of gun ownership" is a moronic headline. Nothing that private individuals do or do not do can be unconstitutional.

I think what you are saying is that the DC gun ban is a slam-dunk case. And I agree, of course. But re: your 2nd and 3rd sentences, Dan, do you disagree with the central holding of Marbury v. Madison? Is it not the duty of the Court to interpret the law? If it is not, then who is the rightful judge of the constitutionality of laws? The framers would certainly not say it is the lawmakers' power to do so - they knew above all that individuals given power will attempt to overreach that power, and thus our Constitution has checks and balances built in. Would you have states nullify? (That would certainly be interesting but befits a confederacy more than the union established by the Constitution.)

Back to the real subject of your post. I personally do not believe any government has the rightful power to ban handgun ownership, as is the case in DC. But are you saying with your closing line that there can be no reasonable debate about the meaning of the Second Amendment? Is it not a legitimate question to ask whether the first clause restricts the first, or vice versa?

PS The 10th amendment is indeed redundant. It was included because several states submitted similar language as a proposed amendment when they ratified the Constitution, and as Jefferson said, better to say things many times than leave them to rest on inference. The Convention voted down Madison's proposed federal veto power over state legislation. Further, the Congress voted down a proposed amendment to this effect.

"But are you saying with your closing line that there can be no reasonable debate about the meaning of the Second Amendment? Is it not a legitimate question to ask whether the first clause restricts the first, or vice versa?"

It seems to me that reasonable people cannot disagree. The right protected in the 2nd Amendment is "the right of the people to keep and bear arms." The rationale that the Amendment gives for that right concerns militiae. Regardless of the veracity of the rationale, it is not a restriction on the right. The Amendment is not a conditional, i.e., it doesn't read "If a well regulated militia is necessary to the security of a free State, then the right of the people to keep and bear arms shall not be infringed." The right stands independently of the rationale unless it is amended.

"But re: your 2nd and 3rd sentences, Dan, do you disagree with the central holding of Marbury v. Madison? Is it not the duty of the Court to interpret the law?"

When Dan says that the justices don't determine the constitutionality of anything, the Constitution does, I do not think he is denying that the role of the Court is to interpret the law. Rather, Dan is suggesting that there are limitations to interpretation. Consider an equally ridiculous headline, "U.S. justices could decide constitutionality of free speech." It would be impossible for the justices to the Constitution in such a way that freedom of speech is unconstitutional. This is not to say that five justices couldn't rule that free speech is prohibited. However, in that case they would no longer be interpreting the Constitution. The words of the Constitution have a definite meaning that is independent of what the justices say about them. Those meanings restrict interpretations of the words. This, I take it, is what Dan was after.

It just occurred to me that a bad ruling in this case, while a blow to the Constitution, could be a boon for the Republican party in terms of the next presidential election (a boon that wouldn't benefit Giuliani). If the Court established any precedent that could be used to take away citizens guns, voters that the Republican party has never had will come out of the wood-work in support of the right to bear arms.

Ralph, regarding the free speech scenario specifically, and the larger point in general, consider Schenck v. US, Abrams v. US, Chaplinsky, and a host of other cases in which restrictions on freedom of speech -- which is protected an absolute in the First Amendment "Congress shall make no law" -- was held to not violate the First Amenmdent. Was the unanimous Court in Schenck not interpreting the Constitition?

The Bill of Rights is actually not a list of rights, (perhaps with the exception of some criminal procedure provisions and the ninth which contains a reference to natural rights) but a list on restrictions on the federal government's power. The 1st amendment says there shall be no law abridging the freedom of speech or press, and yet in 1798 Congress passed a sedition act making it a crime to criticize John Adams. Abraham Lincoln imprisoned editors at Ft Lafayette. And in 1919 we get to a case the Court actually ruled on, Schenck. And they sided 9-0 with the government who threw a socialist in jail for calling the draft a form of slavery and counseling people to resist the draft.

Perhaps you do take an absolutist view on the First Amendment's prohibition of restrictions on speech, and if so that's cool, I can respect that. I am pretty close to that myself, with the proviso that the modern Court conflates "speech" wtih "action."

And yes, the Supreme Court is not given the final because it is always right, but people mistakenly believe the Court are always right simply because it has the final word.

While I share your interpretation of the Second Amendment, I believe it is reasonable to question the Founder's intent with respect to the Second Amendment, and whether it was meant to prevent federal interference with existing state militias. Do I find this thoroughly persuasive, no. But I think it's a legitimate question to ask and doing so does not make one unreasonable. Most of the amendments were written with an eye to restraining the federal government and protecting existing state institutions, including churches.

Of course the Constitution has meaning outside the Court's interpretation - it has, in fact, multiple ones. Who decides the "definite meaning" of the words in the Constitution? Whose view is authoritative?

OMG, sorry about this sentence: And yes, the Supreme Court is not given the final because it is always right, but people mistakenly believe the Court are always right simply because it has the final word.

After writing it, I decided I should make "the Court" singular but when I fixed it, I obviously didn't catch all the places I needed to fix. Sorry - for that and other typos.

Veronica,

Sorry, the free speech example was not a well thought out one on my part. Let me offer a very simple example which, I think, will illustrate what I want to say perfectly. According to Article I, Section II, "The Senate of the United States shall be composed of two Senators from each state." Suppose there were some litigation involving this clause, and the Court ruled that Article I, Section II states that the Senate is to be composed of three Senators from each state. Can their ruling be an interpretation of the Constitution?

You write that the Constitution has multiple meanings, and then ask "Who decides the 'definite meaning' of the words in the Constitution? Whose view is authoritative?" Let me suggest that you are conflating the meaning of a text with the interpretation of a text. If the two were the same, then an incorrect interpretation would be impossible. The fact is that words have definite meanings that are independent of any particular interpretation. In the fanciful example I've given above, the word "two" has a definite meaning that is independent of the Court's (incorrect) interpretation.

The meaning of words is, more or less, how those words are used by the linguistic community. Our best guide to what the words of the Constitution means are contemporary writings that use the same words, contemporary dictionaries (e.g., Webster's 1828 dictionary), etc.

In my opinion, the intentions of the Founders are of less interest (by a large measure) than the meanings of the text's words. Suppose a Founder had written that by "two Senators" he in fact meant three. His intentions would be irrelevant psychological accompaniments to the words of the text.

In my opinion, if the Court ruled against basic forms of gun ownership, their ruling would be only slightly less absurd than a ruling granting three Senators to the States. The language of the 2nd Amendment is unequivocal in granting a right to own and bear arms. Any statement to the contrary cannot claim to be an interpretation of the text. It can only be viewed as ignoring the text in favor of the Justice's preferences. In effect, it is treason.

Ralph,
You're comparing apples and oranges. There is a difference between a fixed quantity being spelled out in the Constitution (2 senators) and the inclusion on a prohibition on government's powers to infringe on a right. A right is a philosophical, moral, legal, and even theological concept, hardly the equivalent of something as black and white and "2 Senators."

The Constitution does not grant any rights. It protects rights that are preexisting, the gift of God, possessed by all by virtue of their humanity. And of course, the right to bear arms and defend oneself predates the Constitution.

The question is how that right is to be protected. By which level of government, and within what legal framework? And, like all the other prohibitions on government aimed at protecting natural rights, what are the limits of that right? What are "arms?" Do I have the right to own a nuclear weapon? If we agree that I do not, then we must agree there can be limits on the right to bear arms. And if there can be limits, then reasonable people have to determine what they are.

Like Dan has said here before, even the rights Americans cherish the most, such as free speech and free exercise of religion, are protected by the federal government because supermajorities believed they should be, and set up "parchment barriers" to assist in the effort. But the effort is still ours.

"Better to fight for something than live for nothing".

What? No Veteran's Day posting you ba$tard$?!

Veronica,

There certainly is a difference between what the language "two Senators" and the language "the right to keep and bear arms" accomplishes. That's not the point I was making. The point I was making is that the words "two Senators" have a definite meaning that is independent of what any justice says about Article I, Section III. In the same way the words of the 2nd Amendment have a definite meaning regardless of any particular ruling.

The word "arms" for example has a definite contextual meaning that is independent of any ruling. If, for example, the Court ruled that the Amendment only protected the right to keep and bear swords, it would be a bad interpretation, i.e., the interpretation would be inconsistent with the contextual meaning of the word. And if the Court ruled that citizens could not keep or bear "arms" of any kind, that ruling would not be even a bad interpretation. It simply wouldn't be an interpretation of the Constitution. Instead, it would be an arbitrary edict by the Court.

Whether or not the Constitution grants or protects rights is a more subtle question, it seems to me. I think a lot has to be said on the relation between natural rights (and if there are such things) and positive rights. But I am not interested in that question here. I am only interested in defending the claim that justices do not determine the constitutionality of rights. The text of the Constitution is the ultimate source of its content.

Agreed, and agreed: words have meaning; the Constitution determines whether something is constitutional. What I am still struggling to understand is how you claim the Court (or anyone) could determine the meaning of the Constitution without subjecting it to interpretation.

You said, "The fact is that words have definite meanings that are independent of any particular interpretation."

How do we find out what those meanings are? Is the dictionary process you descibed not a method of inquiry/interpretation of a text's meaning? I am not conflating the two; you seem to be insisting, or at least implying, that an understanding of the former can be achieved without the latter.

You also said, "The meaning of words is, more or less, how those words are used by the linguistic community."

This weak definition does not inspire confidence as to yours or any other human being's ability to nail down the precise, stable meaning of any single word, much less a text like Constitution. If the first clause of the Second Amendment is merely a rationale, why include it at all? Why not simply say, as all the other amendments do, that no abridgement of this right shall occur?

e.g.
Congress shall make no law..
No Soldier shall, in time of peace be quartered in any house....
The right of the people to be secure...against unreasonable searches....
trial by jury shall be preserved...
The accused shall enjoy a speedy and public trial...
Excessive bail shall not be required....

No "rationales" listed in any of the above.

I don't mean to beat a dead horse here, but Madison could have said, "The right of freely examining public characters being the guardian of every other right, the liberty of the press shall be preserved." But he didn't. If the Second Amendment is not at least partiallyabout the right of state militias to be left alone by the federal govnerment, why include anything about militias at all?

Is the above not a reasonable question/dialogue? You said "reasonable people cannot disagree." I think what you were getting at was that two truths cannot contradict each other; but I think you overstated it.

Right now, this is what I am hearing: A way of reading that brings me to a conclusion I do not like resulted in "an incorrect interpretation." Any method that allows me to arrive at the conclusion I do agree with resuled in a correct assessment of the text's "meaning."

That the second amendment and most of the rest of bill of rights applies directly only to the Union government was clear to the Framing generation. As John Marshall pointed out in Barron v Baltimore (1833):

"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes."

This point is critical: The constitution only constrains the states when it says so explicitly. The constitution was not a charter for all government in the U. S. as liberals often have it, but only a charter for the new government which was built to supplement the existing governments.

This means that not only is the 10th Amendment redundant but most of the bill of rights are redundant. Would Congress have the power to establish a national church in the absence of the 1st Amendment? Definitely not. (Could states impose severe punishments without offering trial by jury? Definitely. Louisiana did this until the 1960s when the Supreme Court made up a new command and pretended it was found in the 14th Amendment.)

This redundancy is one of the two primary reasons the Framers, sitting in state delegations at the convention, voted unanimously to oppose the addition of a Bill of Rights, even though they knew this rejection would make ratification more difficult. They feared exactly that the logical conclusion that Dan has tentatively reached, would be reached by future generations.

But finally, Madison felt he had to promise to work for a bill of rights in order to get ratification. He left a large paper trail pointing out the redundacies, while engaged in what he called the "noxious project" of drafting the bill of rights.

But the District of Columbia is not a state. Its actions are Congress's actions and such actions are constrained by the 2nd Amendment.

Veronica,

There is such a thing as understanding the meaning of words without interpreting them. Rarely in my everyday commerce with words do I interpret what others are saying. I immediately understand them. However, concerning our discussion of the 2nd Amendment, I agree that we are involved in interpretation.

Interpretation is the "translating" of words whose meanings are unknown or unclear into words whose meanings are known or clear. Thus, looking words up in a dictionary is a paradigmatic case of interpretation. But the meaning of a word is not given to it by a dictionary. The lexicographer is an empirical scientist who records the norms of a linguistic community.

I would argue that such interpretation is often required for our understanding of the Constitution because our English is, in many cases, not the English of late 18th-century America. We must learn what the words of that era meant by reading them in various contexts.

With respect to the 2nd Amendment, there isn't that much room for interpretation, in my opinion, because the meanings of the words are fairly clear. "Arms" are weapons, and the context makes it clear that the weapons in question are those carried by militiae, viz., hand-held guns.

You ask, "If the first clause of the Second Amendment is merely a rationale, why include it at all? Why not simply say, as all the other amendments do, that no abridgement of this right shall occur?" It does state that no abridgement of this right shall occur. In addition, it states why the Founders thought such a protection necessary. Why did they include a rationale here and not elsehwere? I couldn't say (I'm certainly not an authority on the Constitution). What I do know is that the English sentence "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed" is not logically equivalent to an if-then sentence.

Doc,

What about the 14th Amendment?

Well said, Doc.

You son of bitch! I read your book!

This is probably going on way too long but I have some time today....

1) Re: your interpretation of the meaning of "arms"...Would not an 18th century militia have had nukes if the technology existed? Are we to confine the "meaning" of the Constitution to the technology of 1789? Come on.

2) Yes, it does say "the right of the people to keep and bear arms shall not be infringed," but that is not all it says on the matter in that same sentence. It's intellectually dishonest to take it out of its complete context.

3) It is not literally an if-then, but it's pretty close - it's an instance of the subjunctive. Punctuation also varied in the 18th century from standards today; the use of "being necessary" seems to provide, as you say, the rationale for the protection. Which opens up the question of protection for whom, from whom, and in what form? The meaning of the amendment cannot be divorced from militias. This is not to say it only applies to members of formal militias, as the militia in the 18th century was all eligible men, but once again, this is a very reasonable debate; the Constitution requires interpretation and it is the province of the judicial branch to do it.

btw, I'd be interested in what you, Dan and others think of the case US v. Miller.

Ralph,

The fourteenth amendment was written to protect the newly freed African-Americans from "black codes," state laws that treated them differntly. Though Justice Black argued that the Framers of the 14th had much larger goals in mind, I believe decent historical research contradicts that point of view. There was much debate and discussion among the people and none, or almost none, (depending on your powers of constural) of that can be construed to be about applying the bill of rights to the states.

The people did not believe they were changing the basic structure of the Union (except insofar as they were protecting African Americans). Since they didn't believe it, it didn't happen.

1) "Would not an 18th century militia have had nukes if the technology existed? Are we to confine the 'meaning' of the Constitution to the technology of 1789?" I suppose that 18th-century militia members could have carried light-sabers if the technology had existed. Do I then think that the 2nd Amendment protects the right of future U.S. citizens to keep and bear light-sabers? Of course not. The historical context is relevant to the meaning of the sentence. This is not to say that the 2nd Amendment protects only the right to keep and bear muskets. Some allowance for technological advances must be made. Here there is room for interpretation. I think a reasonable interpretation would allow for the kinds of arms carried by 18th-centuty militias, viz., hand-held guns.

2) I did not take it out of it's complete context. Immediately after stating that the Amendment did prohibit an abridgement of the right to keep and bear arms, I wrote, "In addition, it states why the Founders thought such a protection necessary." Is it intellectually dishonest to ignore what someone says?

3) "The meaning of the amendment cannot be divorced from militias. This is not to say it only applies to members of formal militias, as the militia in the 18th century was all eligible men, but once again, this is a very reasonable debate...." I agree that the meaning of amendment cannot be divorced from militias. In particular, the meaning of "arms" is indicated by the Amendment's concern with militias. This does not mean that the right itself is dependent on the truth or falsity of any claim concerning militias. The Founders could be completely mistaken about the necessity of militias for the security of a free State, and the 2nd Amendment's protection of the right to keep and bear arms would be unaffected.

I am not familiar with the details of U.S. v. Miller. I'll have to look it up.

Doc,

I guess I don't share your concern with the intentions of the law-makers. Consider the following example.

Suppose I enter into a written contract with someone in which I agree to give them "all of my possessions" for the fee of $1,000. However, when I wrote the contract, I didn't intend for "all of my possessions" to include my stamp collection. Indeed, I had informed the other party in a letter (not to mention several conversations), that I intended to keep my stamp collection. How do you suppose the judge will rule? How ought he to rule?

Ralph,

The judge ought to rule that your stamp collection is still yours. I believe that, if you present enough information or if your contract partner is honest and tells the truth about your conversations, that is how the judge will rule. That the words are commonly perceived to mean something else, or mean something else to other people, should not be relevant. What matters is what the parties to the contract agreed to. The parties to the compact which charters the national government are the people of the states. What they thought they were agreeing to is what matters, morally and legally.

Don't you agree?

Doc,

In my example, the only mutual agreement between the parties is the contract in which I agree to sell "all my possessions." In addition, I wrote a letter (etc.) to the other party qualifying "all my possessions" so as to exclude my stamp collection. The other party did not accept my qualification in a letter or verbally. (I do think if he had written a letter accepting my qualification, then the two letters would constitute an amendment to the contract). In such a case, my extra-contractual intentions (however they are expressed) are irrelevant to contract.

I think the example I have given approximates the compact that is the Constitution. You write, "The parties to the compact which charters the national government are the people of the states. What they thought they were agreeing to is what matters, morally and legally." I agree that the parties to the national compact are the people, but it seems to me that the parties are not the people of 1789. That is, a citizen in 1789 is no more of a citizen, no more of a party to the compact, than any other citizen of the U.S. past, present or future. In addition, any evidence that could be gathered from opinions concerning any provision of the Constitution at any time are sure to be anecdotal (how many citizens were there in 1789, and how many records do we have of such opinions?), and therefore, arbitrary.

Ralph,

If my father entered into a contract with your father to form a corporation many years ago, and now we had a dispute related to that contract, our moral responsibility would be to try to understand, as best we can, what our fathers meant by the contract they entered. And if we disagreed and took it to court, the judges responsibility would be the same. Their understanding, and not our understanding, (and certainly not our needs or desires) should control.

Might we have trouble understanding what they meant? Certainly, but that doesn't necessarily make any attempt to understand "arbitrary" in fact many things in the contract might be quite apparent. But difficult or not, it is our moral responsibility to bring whatever evidence we can to bear on the issue.

All alternatives to this moral responsibility reduce to this: whichever of us have the most of whatever is relevant power today would impose a solution on the other. All alternatives to such moral obligation undermine the foundation of free government. Madison put it clearly: The vital principle of free government is compact.