Tuesday, November 08, 2005

Stare Decisis?

Don Cates, Monday lunch, made a persuasive case that the 2nd Amendment cannot mean what current Supreme Court jurisprudence seems to say: it's about the state militias, aka Nat Guard. Rather, he insists, its meaning is what it appears on its face: "keep and bear arms" gives INDIVIDUALS the un-infringable right to own and carry a gun, everywhere in the country.

The plain meaning, the original meaning and consistent reading of this amendment congruently with other contemporaneous amendments ("rights" refers to individuals, "powers" refers to states), he claims, ALL tend toward this understanding.

Can the Supreme Court persist in applying current precedent?


Andreas said...

Also, it would be kind of redundant to have that interpretation as the national guard is specifically provided for in Article I. Although admittedly it is not guaranteed in that clause.

GULC Law Student said...

The Second Amendment is included in the Constitution as a safety valve in case everything else in the Constitution fails to keep the government in order. The Second Amendment allows civilians to maintain weapons in consideration of the day when they'll need to use them against their own government.

But guns aren't enough to overthrow a modern government. To overthrow a modern government the people would need more. The people would need unlimited access to bombs, tanks and fighter jets. If you're going to back the Second Amendment on original meaning grounds, you'll have to allow for organized groups of citizens owning and maintaining tanks, bombs and heavily armed fighter jets. The question is, is this something you're really ok with?

I think I might be. But it's also possible that we can look at the Second Amendment and read it in a way that makes sense today. It's not really feasable for a small group of individuals to overthrow the government by force anymore, at least not in this country.

The Second Amendment needs to be retooled for the modern era. Does it make sense to say that guns should be available to stop individual agents of government from exceeding their authority (instead of the whole revolution thing)? The constitution doesn't say anything about hunting or personal self defense against criminals, I don't really think those are fallback options.

Any opinions on the point of the Second Amendment in a modern world?

Charles Iragui said...

Mr. Cates addressed the possibility that the 2nd Amendment meant, without saying it on its face, collective right to arm oneself for rebellion against tyranny. Without denying that this idea did exist amonst Founders, he carefully outlined the more obvious right, to generally defend oneself, which the language obviously guarantees.

I am not sure that an armed citizenry makes for a safer society but it seems difficult to reduce the evidence that the 2nd Amendment provides a constitutionally protected right to own a gun.

D said...

I disagree that the citizenry would need tanks and jets to fight and win against the U.S. government. There are a few insurgents in Iraq who disagree too. And Vietnam.

-Dave Lane

Charles Iragui said...


Are you an NRA member?

As a concerned French citizen, I am also reflecting on how the rioting would be different were the citizenry to be armed... As in the past, when demonstrations turned violent, things now are limited to burning and stone throwing. Though I did hear that there was some shooting at police.

As a purely policy matter, I wonder whether an armed citizenry doesn't hinder free speech. Martin Luther King was finally assassinated...

Some might assert that France would be a more equal society if the majority knew that the minority were armed. Similar to the deterrence of crime on an individual level?

D said...


Ha! I'm not an NRA member, but I did recently go skeet shooting in Virginia with a Republican. Loved it.

I'm one of the people who feels that the 2nd Amendment grants a right to bear arms in the context of "a well regulated militia."

I have never studied the 2nd Amendment in any depth, so I don't feel particularly strongly about my opinion.

-Dave Lane

Scott said...

To answer your question, the Supreme Court clearly can persist in applying current precedent--it does have the ability to do so. But of course it is not right to do so.

Indeed, this raises an interesting question, in that this seems to be a case in which the Supreme Court is clearly wrong: are we, as citizens, bound to follow the Court's erroneous interpretation?

Charles Iragui said...


Thanks for addressing the stare decisis issue!

I wonder whether a Brennan or a Sunstein would argue that the words once meant the right to own and carry a gun but that the Supreme Court has the ability to recast the words as much as possible. That is, to consciously disregard the original meaning, not simply preserve one's ignorance of the original meaning (Brennan?) or choose to disbelieve the proposed original meaning (Sunstein?). My suspicion is that these liberal jurists would like to preserve a veil of fidelity to the words of the Constitution. This means that they, too, acknowledge the binding nature of the words BUT only insofar as that binding quality requires clever dodges of the words' plain or original meaning.