Tuesday, July 20, 2010

On the Limits of Constitutional Interpretation

Last night, Eugene Volokh pointed out that figuring out how to apply the Second Amendment requires not only deciding how to treat a fundamental right but also what it means for that right to be "infringed."
A commenter discussing the gun show case writes, among other things,
So, along with Chicago and DC trying to keep poor people from exercising their “fundamental right” by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a “want” instead of a “RIGHT”. The standard of review should be “SHALL NOT BE INFRINGED”.
The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can’t sell them on government property? How about to say that you can’t even possess them on government property? What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?
Not surprisingly, the Volokh commentariat jumped into the fray, a significant portion arguing (I'm paraphrasing, not quoting) that anything limiting possession or sale or ability to use  weaponry "infringes," on keeping and bearing and is, therefore, flat out unconstitutional, by god.  (That's ability to use, not use itself - nobody suggested that murder  or bank robbery or other offense committed with a gun was constitutionally protected, and at least one commenter pointed out that such a reading of the Second Amendment would obviously be wrong.)
* * * * *
An Aside
Shortly before Volokh's post, Jay Root reported from Austin for the AP that if you've got a gun permit, you can get into the Texas Capital without having to pass through security.  As lobbyists and others with regular business in the Capital sign up for gun permits, gun control advocates and out-of-state tourists shake their heads.
That lawmakers would take the trouble to install magnetometers and then allow weapons inside has drawn criticism from gun-control advocates, including the Brady Washington-based Brady Campaign to Prevent Gun Violence, which called the policy "ludicrous." Some tourists also were perplexed by the new procedures.

"Where's the security come from if you can still get in with a gun?" asked Canadian tourist Clyde Ducharme, who went through the metal detectors one recent morning.
My friend Anna D, who pointed me to the story, wished Molly Ivins were alive so that we could get her take on it.
End Aside
* * * * *
Meanwhile, the lead editorial in today's Times says that the Senators who vote against Elena Kagan's nomination won't be voting against her or against Obama but will really be taking on a broad view of the government itself - and in particular of the Commerce Clause.
The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related. 
So, the Times opines,
Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead. 

I've talked about the Second Amendment before.   The short version:  The idea is to ensure that the people have the means to engage successfully in violent revolution.  It's the provision necessary to satisfy Jefferson's belief that every 20 years or so, there needed be a rebellion to refresh the "tree of liberty . . . with the blood of patriots & tyrants."  That is, the right to bear arms is the right to bear them against the government.  It has nothing to do with self-defense against criminals who would rob or rape or pillage or against ravaging native Americans or against grizzly bears.  (The hard question is the application of the Amendment today when the means necessary for rebellion might include nuclear weaponry or other WMDs.  The framers didn't contemplate our current technology of destruction.  It's not at all clear to me what they'd have thought if they did.)

I haven't talked much about the Commerce Clause (and when I did, it was also a post about the Second Amendment), but it seems to me evident that it was intended to give the government (actually Congress) power to regulate, er, commerce, which is not the same as the power to regulate anything which might happen to have some tangential relationship to commerce.
All that's theory.
In practice, I think it follows that the Second Amendment does not prohibit government regulation of the sporting possession and use of arms or for purposes of individual self-defense.  Concealed carry can, I think, probably be prohibited except in aid of insurrection.  But you can have a tank in the back yard.  That may be bizarre, but it's what follows if you believe that what the framers said and had in mind counts.  I hate guns and wish the populace disarmed, but that doesn't strike me as a Constitutional option.
I've got a related problem with the Commerce Clause.  I agree with the Times that much good has been done in reliance on an expansive view of the Clause.  But the Constitution doesn't say that Congress can do what it likes so long as it is both socially desirable (like we could agree about what those things might be) and can find some tenuous connection to commerce.  Does the Endangered Species Act really have a relation to interstate commerce that's more than a statutory fiction?
(Note that I'm not weighing in here on whether the health care law or the bailout of AIG or whatever is or is not constitutional.  Nor, even, on whether those things are good policy choices.)
This is about how to view the Constitution.
And the problem with the Constitution is that it sits out there as a monument.  We worship it.  But we never quite know what to do with it.  Is it a contract, plain and simple, or is it a combination of contract and set of guidelines.  Is it to be read narrowly or broadly?  When there's a conflict, will words matter or intentions?  And how do you determine intentions, anyway?
The supposed strict constructionists on the Court ignore the Ninth Amendment because it doesn't specify what it covers.  Libertarians and civil libertarians, on the other hand, think it's essential, though they may disagree about its content.  Nobody can really agree about how the Free Exercise and Establishment Clauses of the First Amendment co-exist.  And none of that is much of a guidepost.
But we're still faced with that fundamental interpretive question: Is the Constitution to be viewed as primarily saying what government can do or what it cannot?  Are the constraints on government to be read broadly or narrowly?
The problem and the solution both is that it's a limited government with an expansive reach.  A goal, set forth in the Preamble, is to "secure the Blessings of Liberty to ourselves and our Posterity."  Now, we can argue a lot about what those "blessings" are.  But when government starts telling you what to do, it's pretty clearly interfering with them.  When government locks you up (whether the lock up is criminal or civil), it's pretty clearly interfering with them.  When government tells you what to think or to believe, it's pretty clearly interfering with them.
If you're with me on that, then you view the Constitution's limitations on federal government action as strict.  But there's another piece of it, too.  For the civil war amendments (the Thirteenth, Fourteenth, and Fifteenth) limit what the States can do.  And what individuals can do.  Because to ensure liberty for one means that there must be restraints on liberty for others.
And the Fourteenth, in particular gives Congress "power to enforce, by appropriate legislation, the provisions of this article."  Which makes the Constitution's authorization of federal government action expansive.  But still, within limits.
The Second Amendment, bless it's ugly (from my point of view) heart, puts a real if bizarre limit on the government's ability to disarm the populace.  And the Commerce Clause, by god, gives the government a right to regulate commerce, but not those things which might, somehow, by some attenuated reasoning, have some tangential relationship to commerce.
I may not like those results, but that's not the proper test of what's constitutional.
Though in a better world, it might be.


  1. Not bad. No one can know what the founding fathers had in mind when they wrote the second amendment, all of them being on the other side of the lawn these days, however that shouldn't keep us from speculating.

    These men (men, I say, as the women were not involved) were certainly intelligent and well educated, one way or another. By all accounts they were fairly rough customers. Men still fought duels as the Second was written. All of these men were revolutionaries who had recently defeated a larger, much more powerful tyrant: Old Mother England. England would have disarmed these men and their supporters had things turned out a little differently.

    So my speculation is that if the 2A were being recognized as the framers intended, all of the adults who were of fairly sound mind would be armed as we thought prudent, and we would carry our armaments as it amused us to do so.

  2. In 1755 Samuel John­son pub­lished the the “Webster’s dic­tio­nary” of the day.
    It was the defini­tive dic­tio­nary of the Eng­lish lan­guage at the time the US Constitution was written.
    Under the word “arms” the 1755 def­i­n­i­tion was ” weapons of defense or armour of defense“
    The definition of arms did not restrict the term to portable hand held weapons like mus­kets and swords, (as some revi­sion­ists who try to rein­ter­pret the sec­ond amend­ment claim)…but even included the most ter­ri­ble weapons of the day…the can­non.
    Which means that Amer­i­cans are not lim­ited in what type of weapon they can own: a stinger mis­sile, a tank, a bazooka, a flame thrower. Any “weapon of defense” is fair game. Machine guns, hand grenades, RPG’s all are included in the sec­ond amend­ment. I would even go so far as to say that Americans even have the right to possess biological weapons.
    Amer­i­cans have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual.
    There are those, even some in the NRA, who would like to draw a distinction between a handgun and , say a bazooka, a missile or a suitcase nuke. But based to the second amendment and the definition of "arms" , Americans citizens have the right to own any weapon they wish.
    No exceptions.