What Rick Perry Believes About the Constitution

Rick Perry and his make-me-look-smart glasses are officially in the race for the Republican presidential nomination. ThinkProgress takes a look at some of Perry’s views on Constitutional matters which are, to say the least, outside the mainstream.

1) Social Security and Medicare are Unconstitutional

The Constitution permits the federal government to “lay and collect taxes” and to use the funds raised by these taxes to “pay the debts and provide for the common defense and general welfare of the United States.” This provision lays out the constitutional basis for federal spending programs such as Social Security, Medicare and numerous other such programs that seek to advance the general welfare.

Perry, however, believes these programs are unconstitutional. “I don’t think our founding fathers when they were putting the term ‘general welfare’ in there were thinking about a federally operated program of pensions nor a federally operated program of health care,” Perry told the Daily Beast’s Andrew Romano in 2011.

He offered similar views in a 2010 address to the American Legislative Exchange Council’s (ALEC) National Policy Summit. Proclaiming that “the nearly unlimited scope of the federal government contradicts the principles of limited, constitutional government that our founders established to protect us,” Perry claimed that an assault on this principles “continued into the Roosevelt New Deal.” He then named “a bankrupt Social Security system” as an example of a New Deal program he opposed.

Later, in the same speech, he claimed that President Lyndon Johnson’s Great Society “further eroded our founding fathers’ boundaries that they had put upon the federal government.” He also specifically named Medicare as an example of Johnson’s supposed sins against the Constitution…

Perry also listed Medicaid in his ALEC speech as an example of a Great Society program that, he believes, violates the Constitution. Similarly, his statement that Congress’s constitutional authority to spend money does not permit “a federally operated program of pensions nor a federally operated program of health care” sweeps broadly, implicating all federal health care programs. So that means that programs such as the Children’s Health Insurance Program or much of the Affordable Care Act would also cease to exist under Perry’s vision.

Perry has also made statements suggesting that any federal laws regulating the health care industry are unconstitutional. “There is nothing in that Constitution that says Washington D.C. is supposed to be telling us how to deliver health care,” the former Texas governor told a crowd of New Hampshire voters in 2011, reiterating a view he’d expressed on Glenn Beck’s now-defunct Fox News show a few months earlier. Taken to its extreme, this view would not only prevent federal regulation of health insurers and hospitals, but it would also eliminate the Food and Drug Administration’s power to keep dangerous drugs and quack remedies out of pharmacies.

3) Federal Clean Air Laws are Unconstitutional “Nonsense”

Perry also claimed that the notion that the federal government is “telling us how to . . . clean our air is really nonsense.” It’s likely, moreover, that Perry’s objections to environmental regulations extend far beyond the Clean Air Act. A section of Fed Up! argues that the Supreme Court has read Congress’s power to “regulate commerce with foreign nations, and among the several states” too broadly. Although Perry does not explain in detail how he would interpret this provision of the Constitution, he does suggest that Congress has overreached its constitutional authority in a long list of policy areas, including “the environment,” “guns,” and “civil rights.”…

9) But Activist Judges Are a Serious Problem

Having laid out a long list of laws he thinks should be declared unconstitutional, Fed Up! pivots to a rant against Supreme Court justices who act as “‘Grand Ayatollahs’ of the Constitution.” He objects to Supreme Court decisions supposedly dictating “where we may and may not pray to God, when life begins, whether contraception must be allowed to be sold, whether and how we can celebrate religious holidays, what level of pornography and vulgarity must be allowed, whether those other than man and woman must be allowed to marry, what level of discrimination may or even must be carried out . . . whether a state must allow women to attend an all-male military academy, who may be executed and whether we may execute criminals at all.”

So basically, he wants to turn back the clock a century or so to the days of child labor, widespread violations of the Establishment Clause, bans on interracial marriage, legal discrimination and wholesale dumping of toxic waste into the air and water without limits. Sounds charming.

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  • jimmiraybob

    So basically, he wants to turn back the clock a century or so….

    Maybe a little more than two or so. I think it’s fair to ask his opinion of the original “constitution” – the Articles of Confederation. You know, before the greatness and glory of the individual sovereign states was smashed by the radical nationalists Madison, Washington, Hamilton, etc.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    So basically, he wants to turn back the clock a century or so to the days of child labor, widespread violations of the Establishment Clause, bans on interracial marriage, legal discrimination and wholesale dumping of toxic waste into the air and water without limits.

    It’s a little thing called “Freedom”, Ed. Look it up.

     

    “Sounds charming.”

    It is. It’s fantastic. Granted, it’s only charming if you’re weathy and powerful enough to live upriver and upwind, but half of the American Dream is moving to the good side of town (the other half is getting there and preventing others from making the same journey).

  • eric

    Does he even have a campaign strategist or campaign manager? Because it doesn’t seem like it. Saying you’re going to eliminate Social Security and Medicare…I can’t imagine that even a GOP strategist would consider that a good idea.

  • raven

    Rick Perry:

    Social Security and Medicare are Unconstitutional

    LOL.

    1. Social Security and Medicare are successful programs and wildly popular.

    2. Especially with Rick Perry’s supporters i.e. weird old white people.

    3. Oh well, every dark cloud has its silver lining. If Perry abolishes those two programs, his supporters will end up living in the parks and dying younger. And then the USA can move on.

    PS: It’s not impossible to abolish Social Security and Medicare. But everyone working today has paid into those programs and have made plans around them. It would be total chaos and produce a lot of angry and suffering old people. I can’t see this being a viable political program.

  • scienceavenger

    He then named “a bankrupt Social Security system” as an example of a New Deal program he opposed.

    When someone claims social security is bankrupt, or going to “run out of money”, you know you are dealing with either a liar or a fool. I think here we got the Daily Double.

    “I don’t think our founding fathers when they were putting the term ‘general welfare’ in there were thinking about a federally operated program of pensions nor a federally operated program of health care,”

    But when they said “keep and bear arms” they definitely were thinking about fully automatic weapons and RPGs…

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    eric, look, Us Conservatives aren’t going to abolish Social Security and Medicare. We’re simply going to privatize one(*1) and voucherize the other(*2). This is not bad. This is good. So good, in fact, that those over 55 will be exempt from them. For now.

     

    *1. Taking its funds and giving them over to Wall Street to manage. And who knows better how to make money than Wall Street?

    *2. Taking its funding and giving it over to Grampa to manage. And who knows better how to navigate an (ideally) unregulated private market for healthcare insurance than the elderly?

  • bushrat

    “I don’t think…

    No need to continue with the rest of his statement, this pretty much sums Perry up.

  • http://drx.typepad.com Dr X

    Rick Perry and his make-me-look-smart glasses

    I just wanted to repeat that.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    It’s going to take more glasses than that.

  • felidae

    If these clowns want a strict interpretation of our holy Constitution, why do they always leave out the first 13 words of the 2nd Amendment?

  • moarscienceplz

    There is nothing in that Constitution that says Washington D.C. is supposed to be telling us how to deliver health care

    In the 18th century, the standard of care was usually bloodletting. George Washington caught a cold or possibly the flu and instructed his physician to bleed him. And then told him to do it again, and again. Then he died.

    If that’s the kind of originalist healthcare that Rick Perry prefers (for himself), I won’t stand in his way.

  • EnlightenmentLiberal

    1) Social Security and Medicare are Unconstitutional

    3) Federal Clean Air Laws are Unconstitutional “Nonsense”

    By some sort of strict originalist reading, Rick Perry is correct.

    http://en.wikipedia.org/wiki/Commerce_Clause#New_Deal

    IMHO, it’s pretty clear-cut that Perry’s understanding of the constitution is the same as the founders, the Federalists of 1789 and the Anti-Federalists of 1789, and basically everyone else of 1879. The Federalist Papers make this readily apparent.

    However, around 80 years, we had a radical shift in practical application of the limited powers doctrine of the federal congress, often in particular to the commerce clause, but also today with taxation power and health care. Today, there is no practical limited powers doctrine or enumerated powers doctrine to the federal congress.

    Do I care? Not really. It’s IMHO bad because rule of law and all. I think it’s a very bad precedent that we can completely subvert constitutional law without passing explicit amendments. However, it seems to be isolated in effect and not contagious, and on the principle of Stare decesis, precedent, one can make a compelling case that the proper jurisprudence going forward is to continue this 80 year old legal tradition.

    However, if we were to be consistent, then Rick Perry seriously fucks up here:

    9) But Activist Judges Are a Serious Problem

    The ninth amendment to the US federal constitution as understood at the time was a reminder that the judges should be activist to protect the rights of the people. The Federalists and Anti-Federalists compromised and got an official bill of rights amendments, but IIRC some of the Federalists were concerned that by explicitly enumerating certain rights, it might be interpreted as denying several other rights and have the effect of preventing judges from upholding those common law rights. That’s the original purpose of the ninth amendment, to ensure that we have activist judges. A strict originalist reading is judicial activism.

    @scienceavenger

    But when they said “keep and bear arms” they definitely were thinking about fully automatic weapons and RPGs…

    They probably were.

    There’s another section of the US constitution that’s almost never brought up, which is the power of congress to grant letters of marque and reprisal. It was commonplace at the time for private citizens to own and operate warships, cannon and all. To grant a letter of marque and reprisal is to authorize a private citizen in charge of a warship to engage in acts of war against specified foreign nations.

    The original point of the second amendment was to keep the people as well armed as the military. You see, in there time, standing armies were anathema. The national defense was the people, e.g. the militia. The meaning of the word “militia” has drifted over time. At the founding, the “militia” simply meant all able-bodied adult men. For example, see the early militia acts:

    http://en.wikipedia.org/wiki/Militia_Acts_of_1792

    This law basically required every adult male to buy, own, and maintain a then-military-grade firearm, ammo.

    I have little doubt that if the founders were alive today, they would agree that the proper jurisprudence is to protect automatic rifles and RPGs. I also have little doubt that the same founders would have strict regulations on their possession in city limits, on carrying them in public, and so forth. However, the right for the average adult to own them would be sacrosanct – give or take a required license and licensing course.

    I am unsure if the founders would disagree with their value of having an armed population today. Keep in mind that the idea of an armed population was an almost universally agreed proposition at the time of the founding. I suspect that most of the founders would still want the right to own guns, including automatic rifles, even in today’s social, cultural, and technological situation.

    PS: WMDs are a completely different sort. Explosives too. One legitimate problem is that high explosives simply did not exist at the time of the founding. Dynamite was discovered only in 1867. I strongly suspect that even the founders would not agree that the second amendment covers the accumulation of large amounts of explosives. Even if it did, there would be lots of government regulations and oversight to prevent accidental and purposeful mischief.

  • dannorth

    Modusoperandi:It’s going to take more glasses than that.

    I think he has plans to supply a lot of glasses of whiskey to his audiences. Would that help.

  • carpenterman

    You know, if programs like social security and medicare don’t meet Perry’s criteria for “promoting the general welfare”, I’d love to know what he thinks does qualify as something “the founders had in mind”. Big tax breaks for oil companies and laws banning gay marriage, maybe.

  • EnlightenmentLiberal

    @carpenterman

    The problem with that interpretation is to render the rest of the section incoherent. That document is clearly setting up a separation of powers between the federal congress and the states, especially in light of the tenth amendment, and the document is clearly putting specific limits to the powers of the federal congress by enumerating specific powers.

    If we go with your seeming interpretation, then basically every possible law will qualify as promoting the general welfare, which means that it’s not setting up a limited powers government, which is a nonsensical conclusion, which means your initial assumption about “the general welfare” must be wrong.

  • John Pieret

    EnlightenmentLiberal:

    but IIRC some of the Federalists were concerned that by explicitly enumerating certain rights, it might be interpreted as denying several other rights and have the effect of preventing judges from upholding those common law rights

    It wasn’t (or not just) the Federalists, Madison himself originally opposed a Bill of Rights on that ground.

  • EnlightenmentLiberal

    @John

    Thank you for the correction.

  • John Pieret

    EnlightenmentLiberal:

    The original point of the second amendment was to keep the people as well armed as the military.

    There is dispute about that. Some of us think it was to maintain “a well regulated militia.” We can agree that the Founders didn’t want a standing army or navy.

    I have little doubt that if the founders were alive today, they would agree that the proper jurisprudence is to protect automatic rifles and RPGs.

    In private hands? I seriously doubt it. In the hands of the National Guard, perhaps, but they weren’t crazy. Where do you stop? I have a close relative who was a physicist who is among probably at least a hundred thousand people in America who could, given enough U 235 or Plutonium build an atom bomb … relatively low yield … maybe kill only 20-30 thousand in the initial blast but very “dirty.”

    If we can’t restrict automatic rifles and RPGs under the Constitution, why should we be able to restrict the sale and possession of U 235 or Plutonium?

    One legitimate problem is that high explosives simply did not exist at the time of the founding. Dynamite was discovered only in 1867. I strongly suspect that even the founders would not agree that the second amendment covers the accumulation of large amounts of explosives.

    Hello? Neither did automatic weapons or the machine guns that wrecked such havoc in WWI or RPGs that are packed with high explosives.

    Sorry, this makes no sense.

  • EnlightenmentLiberal

    @John

    Can we agree about letters of marque and reprisal? Can we agree that it was commonplace to hire mercenaries to fight foreign wars? Coincidentally, just like today where’s it’s commonplace for the United States government to hire mercenaries to fight foreign wars.

    They obviously thought it commonplace for private citizens to own, maintain, operate, ships of war with cannon, including the explosives to fire the cannon. Obviously, this was also relevant in the revolutionary war where they used cannon on the battlefield as well. Compared to cannons, an automatic rifle or a RPG doesn’t seem like that big of a deal. At least, it’s within the same ballpark.

    PS:

    Again, I also think that they probably had regulations for that shit in city limits.

    PPS:

    There is dispute about that. Some of us think it was to maintain “a well regulated militia.” We can agree that the Founders didn’t want a standing army or navy.

    Please don’t make me lose respect for you as an honest and informed lawyer. This is hogwash, and you should know it. If not, I suggest the brilliantly written DC vs Heller decision by Scalia. Have you read the dissenting opinions and the winning opinion side by side? I assume so. I don’t know how you can think that the other side has any leg to stand on after Scalia soundly rips the arguments of the opposite side to shreds.

    Yes yes, Scalia is an evil asshat. I agree. However, stopped clocks, etc.

  • John Pieret

    EL:

    So you are going to make reread that (mostly) piece of shit decision again? Well, if I’m condemned to that, how about you bone up on Scalia’s views of the original intent of the 14th amendment and how it effects women and gays. “Original Intent” is remarkably flexible!

    Compare to how he views the 14th Amendment and what people though it meant at the time to:

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

    I’ll get back tomorrow.

  • EnlightenmentLiberal

    @John

    Don’t get me wrong. Scalia is an idiot, and I’m sure he made good arguments only because they were available to his preconceived notion. Let me disclaim it further. Scalia is perhaps the worst supreme court justice on the bench right now.

  • EnlightenmentLiberal

    I especially like Scalia’s complete destruction of Breyer’s dissent. Breyer’s dissent was especially troubling, and because i like Scalia’s destruction of Breyer’s dissent, let me post it here.

    (Bolding added)

    JUSTICE BREYER moves on to make a broad jurispruden­

    tial point: He criticizes us for declining to establish a level

    of scrutiny for evaluating Second Amendment restrictions.

    He proposes, explicitly at least, none of the traditionally

    expressed levels (strict scrutiny, intermediate scrutiny,

    rational basis), but rather a judge-empowering “interest­

    balancing inquiry” that “asks whether the statute burdens

    a protected interest in a way or to an extent that is out of

    proportion to the statute’s salutary effects upon other

    important governmental interests.

    After an exhaustive discussion of the arguments for and against

    gun control, JUSTICE BREYER arrives at his interest-

    balanced answer: because handgun violence is a problem,

    because the law is limited to an urban area, and because

    there were somewhat similar restrictions in the founding

    period (a false proposition that we have already dis­

    cussed), the interest-balancing inquiry results in the

    constitutionality of the handgun ban. QED.

    We know of no other enumerated constitutional right

    whose core protection has been subjected to a freestanding

    “interest-balancing” approach. The very enumeration of

    the right takes out of the hands of government — even the

    Third Branch of Government – the power to decide on a

    case-by-case basis whether the right is really worth insist­

    ing upon. A constitutional guarantee subject to future

    judges’ assessments of its usefulness is no constitutional

    guarantee at all. Constitutional rights are enshrined with

    the scope they were understood to have when the people

    adopted them, whether or not future legislatures or (yes)

    even future judges think that scope too broad. We would

    not

    apply an “interest-balancing” approach to the prohibi­

    tion of a peaceful neo-Nazi march through Skokie. See

    National Socialist Party of America v. Skokie, 432 U. S. 43

    (1977) (per curiam). The First Amendment contains the

    freedom-of-speech guarantee that the people ratified,

    which included exceptions for obscenity, libel, and disclo­

    sure of state secrets, but not for the expression of ex­

    tremely unpopular and wrong-headed views. The Second

    Amendment is no different. Like the First, it is the very

    product of an interest-balancing by the people—which

    JUSTICE BREYER would now conduct for them anew. And

    whatever else it leaves to future evaluation, it surely

    elevates above all other interests the right of law-abiding,

    responsible citizens to use arms in defense of hearth and

    home.

  • llewelly

    The authors of the constitution have been dead for a long time, and since then, there have been an enormous number of developments which ought to change the views of any reasonable person. How all those factors would affect the putative views of the authors of the constitution, we cannot know, but fortunately, we can make up entirely hypothetical mythology, and thereby reinterpret the holy wisdom of the prophets so as to allow RPGs to the ordinary citizen. We can ignore the fact that they were probably strongly influenced by the use of militias to suppress slave revolts, because that might bring up the unfortunate reality that the authors of the constitution were in fact not reliable authorities on what rights people ought to have, and that, one of their major concerns behind the 2nd amendment, has not been valid for about 150 years.

    That is what the core of originalism has always been: sockpuppeting dead people, people whose ideas were seldom as wonderful as they are widely upheld to be, and people whose ideas do deserve considerable critical scrutiny.

    But there is a silver lining: “EnlightenmentLiberal” has essentially admitted that support for extreme weapon rights is often founded in the legitimization of state-sponsored banditry.

  • EnlightenmentLiberal

    @llewelly

    I was specifically answering a statement about the beliefs of the founders, not what constitutes good law or good jurisprudence.

    As for the matters of practical jurisprudence, I have to go with what Scalia said in the quote above. Similarly, I do not accept a jurisprudence that allows switching the first amendment from protecting blasphemy to a first amendment which does not protect blasphemy. For that, you should need a constitutional amendment.

    As for the matters of what is a good law. I do have a weak and tentative support of gun rights – with lots of licensing and regulation. And it’s not because of any of this individual self defense bullshit. It’s to violently overthrow a tyrannical government, and equally important as a reminder that the particular government exists at the consent of the people.

    But there is a silver lining: “EnlightenmentLiberal” has essentially admitted that support for extreme weapon rights is often founded in the legitimization of state-sponsored banditry.

    And now you lost me. Is this an oblique reference to the idea that gun rights were originally largely to protect “the militias” for putting down slave revolts? Or did I miss something?

  • John Pieret

    Thank you for saving me for having to read all of that marathon decision again.

    Essentially, what the decision does is make a two tiered Second Amendment … there is a right to keep and bear arms for personal self-preservation and a right (before we had a standing Army, Navy and Air Force) to keep and bear arms as part of a well regulated militia in defense of the country.

    If your objection to gun laws is based on Bryer’s dissent, I can agree that Bryer’s distinction between where you happen to be and the crime levels there makes little sense.

    The difficulty is where we put the line between personal self-preservation and national defense. Thus, if there is a right to to own a firearm (or a knife or a sword or … I don’t know … Nunchucks) for personal self-preservation is there a right to own an atom bomb? And who gets to decide that line? The idea that you need or could even use a RPG for personal self-preservation (except in a Mad Max movie) seems ludicrous to me. Nor can I see why you’d need an automatic or semi-automatic rifle with a hundred round magazine. Absent evidence that Mad Max hordes are roaming the country, state and local governments should be able to limit the military-like lethal qualities of weapons kept for personal self-preservation.

  • llewelly

    EnlightenmentLiberal:

    [me:]

    But there is a silver lining: “EnlightenmentLiberal” has essentially admitted that support for extreme weapon rights is often founded in the legitimization of state-sponsored banditry.

    And now you lost me. Is this an oblique reference to the idea that gun rights were originally largely to protect “the militias” for putting down slave revolts? Or did I miss something?

    Here is what you missed:

    There’s another section of the US constitution that’s almost never brought up, which is the power of congress to grant letters of marque and reprisal. It was commonplace at the time for private citizens to own and operate warships, cannon and all. To grant a letter of marque and reprisal is to authorize a private citizen in charge of a warship to engage in acts of war against specified foreign nations.

    In practice, said letters of marque and reprisal were almost always used to attack traders who were shipping under the flag of the target nation. That is state sponsored banditry – or perhaps, I ought to have said piracy, since in practice it was almost always by ship in those times.

  • Nick Gotts

    I do have a weak and tentative support of gun rights – with lots of licensing and regulation. And it’s not because of any of this individual self defense bullshit. It’s to violently overthrow a tyrannical government – Enlightenment Liberal@24

    Hilarious. You should work that one up into a full routine – you’d have them rolling in the aisles!

  • brucegee1962

    So much has changed over the centuries that the original intent of the founders is no longer in any way relevant. However, I also believe that the second amendment means what it says it means.

    We should repeal it.

  • llewelly

    For the sake of clarity, I will state right out that I don’t think regulating action movie rifles is anywhere near as important as regulating hand guns. The guns that cause the most deaths are hand guns. The guns that play the biggest role in threatening the lives of ordinary people are mostly guns that can be concealed. Those are the weapons that need to be regulated in order to have a big effect on deaths. Part of the reason I am angry with EnlightenmentLiberal, is that they took that point, and drowned it in Sam Harris sized pile of pig excrement.

    Unfortunately, gun regulation is not really worth pursuing, because gun cranks are far too good at using any gun regulation advocacy to fabricate “government will take all your guns” conspiracy lies, and thus enable the gun manufacturers to sell more guns, and thus make more money with which to lobby against gun regulation. I am convinced that no headway in regulating guns can be made until something is done about the use of conspiracy lies to make a profit.

    EnlightenmentLiberal:

    I do have a weak and tentative support of gun rights – with lots of licensing and regulation.

    Then you made a huge mistake in failing to consider the context in which your words would be read. You used almost exactly the same arguments that are favored by many vocal people who strongly support so called “constitutional”, that is, totally unregulated open carry of action movie rifles(*). You should have begun with a clear statement of what your position was, rather than burying it in avalanche of text that would give the average reader a very different interpretation.

    And it’s not because of any of this individual self defense bullshit. It’s to violently overthrow a tyrannical government, and equally important as a reminder that the particular government exists at the consent of the people.

    A position which ignores two inconvenient facts: (0) In almost all wars, training and supply are far, far more important than “we have a lot of guns in our homes”, and (1) Almost all revolutions go horribly wrong anyway, either because the orginators had horrible goals in the first place, or because they get hijacked by people with horrible goals.

    It is my opinion that most of what are popularly called “assault rifles” exist because the arms manufacturers would like to make money off of action movie fans, by retooling their military oriented production lines as little as possible. This is why, no matter how the distinction is made between an “assault rifle” and a non “assault rifle”, there are many weapons which are separated out of the “assault rifle” category by seemingly trivial distinctions. Many people prefer to believe that the legal definitions of “assault rifle” are “bullshit” because ordinary people don’t know anything about guns.

    In fact, the (proposed) legal definitions are “bullshit” for an entirely different reason: because people who do know a lot about guns, because making or selling guns is their profession, deliberately sell weapons that were as close to the line as possible, without going over it. Sure, some of the weapons often brought up in these arguments predate the “assault rifle” regulations. But they are very much the minority of weapons at issue. And most (all?) of them were indeed designed to be as military as possible, but not too much military, even when there wasn’t a legal line at the time. A perceived social line was used instead. People like EnlightenmentLiberal, who put the blame for the problems with the “bullshit” distinction on people who don’t know anything about guns are entirely wrong to do so; it is the actions of people who do know a lot about guns which made those distinctions trivial in some cases.

    It’s worth noting that the people who make those kinds of arguments overlap heavily with those who buy, sell, and advocate action movie rifles. That is right: the same people who blame the existence of cases in which the distinctions between an “assault rilfe” and a non- “assault rifle” on people who don’t know anything about guns, are in most cases directly responsible for supporting the market that keeps those weapons in circulation, and in many cases is the primary reason for their design and manufacture. They work hard to create the problem, then they blame it on someone else.

  • EnlightenmentLiberal

    @John Pieret in 25

    I really don’t understand the confusion from a trained lawyer regarding this law. Let me try to explain.

    The wording is “A well-regulated militia, being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

    Again, I think a lot of the confusion is over the term “militia”. “Militia” doesn’t mean the same thing today as it did back then. The militia – and you should note that it’s always “the militia” and not “a militia” – is simply all able bodied men of a certain age. Shortly after that amendment, the federal congress passed a law which required all able bodied men to obtain a certain firearm and ammunition, and to be ready to report for training.

    Another problem is the term “well regulated”. At the time, a common meaning of that phrase was “in proper working order”. In context, “a well regulated militia” meant a militia that is properly armed, properly trained, under proper supervision, etc. It today’s language, we might say “a functioning militia” or “a well operating militia”.

    The logic of the amendment is this: It was the belief that in order to defend the state from internal tyranny or outside invasion, it is necessary for the people to be armed in order to rise up as a well operating fighting force, the militia. In order for that to happen, the people must be armed. The people must be armed in order to practice their skills, and the people must be armed in order that they be able to rise up against internal tyranny. That’s why it expressly protects a right of the people, not of the militia, not of the states, and not of the federal congress.

    The second amendment is really quite simple and clear as soon as you fix any vocabulary problems.

    Thus, your post doesn’t really make any sense to me. It’s operating under false assumptions.

    Now, as to high explosives, biological weapons, nuclear bombs, etc., I would be the first to say that I think that the second amendment is no longer fully appropriate to modern conditions. I do think that at the time it was written, it was clearly intended that a private citizen should be able to own any and all weapons of war, no exceptions. The problem is that technological advancement has made that proposition completely absurd. Still, IMHO, good jurisprudence should be at least this: Whatever equipment the government gives to the common foot soldier, that should be allowed for any private citizen, subject to lots of licensing, regulation of storage, perhaps limits or bans on possession in city limits, etc.

    And of course, that’s an entirely separate discussion as to whether the second amendment is a good idea at all. I happen to think yes, but I can understand why reasonable people would disagree. I do not understand how informed reasonable people can disagree about the legislative intent and history of the second amendment.

    @llewelly in 26

    Oh, sure. I don’t know if I would agree to wholly founded, but I think it provides important insight into the way things were done. I definitely agree with your characterization of “state sponsored banditry”. I also have a strong dislike of the modern usage of mercenaries by the US government in combat zones.

    @llewelly

    A position which ignores two inconvenient facts: (0) In almost all wars, training and supply are far, far more important than “we have a lot of guns in our homes”, and (1) Almost all revolutions go horribly wrong anyway, either because the orginators had horrible goals in the first place, or because they get hijacked by people with horrible goals.

    As to the effectiveness – yes and no. I think I only need to point to the escapades right now in the middle east to show that the might of the US military is not insurmountable by a bunch of poorly trained, poorly equipped yahoos. There’s the fictional idea of an all-out war, and there’s realities of public support for any war – all of the various political concerns which make all-out war something that belongs to fantasy novels only.

    I also do not want to endorse violent revolution lightly. We are nowhere close to the point where violent revolution is justifiable – despite the ridiculous insane antics of many Republicans.

    Finally, I would like to know what you think “assault weapon” means, but more importantly, I want to know what line you think can be drawn and should be drawn.

    The only characteristics that seem to matter worth a damn are: concealability (which is why handguns are a much bigger problem), single shot vs semi-auto, and detachable box magazines that allow quick reloading. Maybe if you put the magazine cap at 5 or smaller that might make a difference, because it’s not a huge difference between single shot breech loading and a conventional detachable box magazine with a capacity of 2 or 3.

    Would you draw the line at any semi-auto firearm with a detachable box magazine? In the other thread concurrent with this one, I have expressed that as an option that’s at least based in reality. Otherwise, I really don’t know what line you would draw.

  • dingojack

    EL – RE: 2nd amendment.

    I suggest you look up ‘nominative absolute’.

    Dingo

  • lorn

    A little understood fact of the revolutionary war was that militia failed, repeatedly. Armies based upon militia simply cannot stand up to professional armies. This is shown to be true after the revolutionary war when various rebellions popped up. Washington had fought with militias and faced with his own rebellion, essentially a local insurgent militia, he chose to go after them with a force he could count on, a standing army of professionals. More on this later.

    The founders, prior to the war, imagined what they though was a better system for the military. There would be no standing army to drain money and annoy the citizenry. Essentially all males of age were supposed to be self-equipped and attending regular training. When the time came they would assemble and march out under an established leadership. Unfortunately it never really worked very well. Adequate as skirmishers tasked with scouting, harassing and holding the flanks they lacked the substance to stand up to massed troops who were exceedingly well disciplined and drilled, perfectly wiling to take casualties, and capable of inflicting crippling losses by volley fire and finishing up with a bayonet charge.

    Being locals in a largely rural landscape there were never enough to match the concentrated force and firepower of blocks of British regulars. Most militia units didn’t even have bayonets, or any way of attaching them to the weapon. When given suitable weapons they were unable to use them effectively in close combat because of a lack of training. The typical British soldier was superbly trained in bayonet drill and they considered the bayonet to be their primary weapon for inflicting casualties and winning battles. Several large battles in the revolutionary war were lost because the British would charge and force the Americans to flee in chaos, or die on their bayonets. We had no effective defense against this tactic.

    Fact is that Washington lost all of the early battles and the fewer regulars he had the more likely he was to lose. It was the shift away from militia and establishment of a conventional army that brought effectiveness to his force. That and a whole lot of French support in the form of finance, supplies, officers, training, artillery and their navy that won the war.

    After British surrender the taxes necessary to pay off the debt rubbed a lot of newly minted Americans the wrong way. So much so that we had the Whiskey Rebellion, along with some smaller uprisings. The original plan for after the war was to disband the army to save money and go back to the militia model. Washington, and others, thought this laughable. They were shown to be right when the rebellions needed to be put down. Washington lobbied for, and got his standing army of professionals and used them to systematically break the rebellions backed by local militia.

    In the end the idea of a nation of farmers without a standing army, defended by a local militia, was shown to be unworkable and ineffective as a military force. Militia has its uses. Local knowledge is always helpful and skirmishers and scouts are force multipliers but small groups half-trained militia are vulnerable to massed troops and heavy firepower, then and now. The story about “minutemen” and their effectiveness is simply a myth. Washington had seen militia being swept aside by disciplined and trained blocks of regulars and pummeled by masses artillery. When the time came to fight militia, he wanted regulars because he knew that the militia experiment had failed.

  • EnlightenmentLiberal

    @lorn

    Sure, but that doesn’t change the legal impact of the second amendment, just like some argument “protecting hate speech is a bad idea” even if right does not change the legal impact of the first amendment.

    I do recognize this as a reasonable argument for wanting to repeal the second amendment.

  • EnlightenmentLiberal

    @dingo

    Yes, and?

  • dingojack

    The 2nd amendment is an example.

    While we need a militia, then arms for all – when a militia is no longer required however…

    (Is a ‘well regulated militia’ really needed now?)*

    Just my $0.02.

    Dingo

    ———

    * And before you go all freedom from evvvuuuullll guberment on me — there is no correlation between the strength of gun-control laws and the level of intrusion of governments on their citizens.

  • abb3w

    @30is, EnlightenmentLiberal

    I really don’t understand the confusion from a trained lawyer regarding this law.

    Because, as a lawyer, part of the training seems to have been keeping straight in his head what he feels the law should be and what the courts say the law is.

  • whheydt

    As regards letters of marque and reprisal, a couple of points…

    The first is that capture or destruction of enemy shipping was carried out by official Naval vessels as well as licensed privateers. In addition, it was a quite profitable activity for the Naval crews and the chance of getting prize money was a major recruiting tool for Naval crews. (Early on, even when the the US government owned warships, they did not have regular crews.)

    The second is that international treaties have outlawed issueing letters of marque and reprisal, so that clause of the Constitution has been a dead letter for some time.

    Disclaimer…An ancestor of mine did a (profitable) cruise on a privateer during the Revolutionary War. Following that, he served on, then became captain of, an 18-gun Brig of War in the Navy of South Carolina (the Notre Dame). From what I’ve read, he was involved in the capture or destruction of some 63 enemy vessels.

  • http://sidhe3141.blogspot.com jy3, Social Justice Beguiler
    a federally operated program of health care

    What country does he live in and how do I apply for permanent residency?

  • EnlightenmentLiberal

    @dingo

    The 2nd amendment is an example.

    While we need a militia, then arms for all – when a militia is no longer required however…

    (Is a ‘well regulated militia’ really needed now?)*

    Just my $0.02.

    Yes, and? Again, this seems like a mighty fine argument why the second amendment should be repealed. I don’t see an argument that the second amendment no longer carries legal force.

    * And before you go all freedom from evvvuuuullll guberment on me — there is no correlation between the strength of gun-control laws and the level of intrusion of governments on their citizens.

    Obviously bullshit.

    @abb3w

    And I win on both counts, right? What’s your point? Also, IMHO, you confused two issues as the same issue. There’s the proper jurisprudence of the law, there’s what the courts actually do with the law, and there’s what the law should be. Three different things.

  • dingojack

    (#39) — “Great come-back Potsie”. Clearly I’ll bow to the mighty force of your argument — oh wait you didn’t actually make one – so I guess not then. @@

    Dingo

  • EnlightenmentLiberal

    @dingo

    And nor did you. Touché my drive-by troll friend.

  • EnlightenmentLiberal

    The second is that international treaties have outlawed issueing letters of marque and reprisal, so that clause of the Constitution has been a dead letter for some time.

    Have they now? I guess I’m not sufficiently versed on the exact technicalities of what constitutes a letter of marque and reprisal, but I continue to see plenty of use of paid mercenaries in conflict zones by the United States government, and if I had to identify an originalist justification for the power to hire mercenaries and use them in wars, I have would have to mention the letters of marque and reprisal clause.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @EnlightenmentLiberal, #30:

    The wording is “A well-regulated militia, being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

    Again, I think a lot of the confusion is over the term “militia”. “Militia” doesn’t mean the same thing today as it did back then. The militia – and you should note that it’s always “the militia” and not “a militia” – is simply all able bodied men of a certain age.

    Ummmm, let’s look at what you wrote again:

    The militia – and you should note that it’s always “the militia” and not “a militia”

    And this bit of writing of yours was to explain the 2nd amendment? What was the wording of the 2nd amendment again?

    Oh right, it was there in your #30 also:

    The wording is “A well-regulated militia, being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

    So it’s your contention that at the time the 2nd amendment was written, it was ***always***

    “the militia”

    not

    “a militia”.

    That’s what you’re going with? That’s what you think the evidence supports?

    Good to know.

  • EnlightenmentLiberal

    US Constitution:

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,

    The militia act of 1792

    it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states

    And so forth. There is only one (unorganized) militia of the united states. It’s the militia.

    In context of the second amendment,

    The use of the indefinite article “a” in the second amendment is because it’s addressing the general concept of militia, and not the militia of the United States. It’s making a general assertion that the existence of a militia is necessary for X.

    Thank you for point out my lack of citations and clarity on that point. I was pretty sloppy.

  • eric

    EL @22:

    I have to go with what Scalia said in the quote above.

    Scalia seems to be ignoring the fact that we place limitations on the rights enumerated in the other amendments, so it is perfectly consistent with constitutional law to place limits on the 2nd. If you want to argue that, like limits on speech and religion etc., limits on RPG and automatic weapon ownership should have to pass a strict scrutiny standard, I could see that. But I can’t see how any reasonable person could disagree with the notion that the state can place some limits on speech, religion, press, assembly, search and seizure, jury trials…and bearing arms. The last is not some super-right that is immune to standard law-making.

  • EnlightenmentLiberal

    @eric

    I believe that a proper bill of rights outlines general principles instead of specific laws. I believe that the United States federal bill of rights (first ten constitutional amendments) outlines and codifies general principles instead of specific laws.

    The general principle of the first amendment is thus: no matter how wrong-headed you think someone’s speech is, no matter how offensive you think it is, no matter how blasphemous you think it is, it’s wrong to limit it. I will stand by that absolute general principle. That’s not a blanket protection of all speech. For example, defamation, false advertisement, contract law, and a few other odds and ends are not protected.

    The fourth amendment is the general principle that the police should not be allowed to operate under general warrants (ex: writ of assistance). The principle is that the police should require specific articulated good reasons to search or seize a specific person or their shit. It doesn’t literally require obtained a warrant preemptively in each and every case. The threshold for “good reasons” is unspecified, and open to interpretation. It’s also not a ban on searches and seizures. However it is a non-negotiable ban on global searches and seizures which by definition lack individualized good reasons specific to the person or place to be searched and / or seized. Roadside sobriety checkpoints are unconstitutional, and the TSA is unconstitutional. There’s no room for legitimate disagreement.

    The second amendment is the general principle that the general population should be as well armed as any standing army or navy (or air force). In the DC vs Heller decision, they do cite several ordinances that regulates the storage of large amounts of gunpowder in city limits. I think laws banning open carry are constitutional. I think that laws banning concealed carry are constitutional. I think that laws banning the possession of certain kinds of amounts of weapons, explosives, etc., inside city limits are constitutional. I think that laws preventing convicted felons from obtaining weapons, and requiring background checks, are constitutional.

    Let me describe the Swiss system as best as I understand it. Every male has mandatory military service, and until recently, were required to keep their military rifle at home. I think this has changed very recently. From what I’m able to find online, they are not allowed to keep the ammo at home, and they have the option of keeping the rifle at a local armory.

    I think the following laws and restrictions may be constitutional under the second amendment: Any citizen is allowed to own any conventional handgun or rifle, including so-called “military style” rifles (e.g. a conventional semi-auto rifle with a detachable box magazine in a conventional round like the 5.56 or the 7.62). The keeping of ammo is also allowed. Open carry is banned. Concealed carry of any firearm is by permit only which requires an extensive background check, a license to the person (not to the gun), and must be renewed on a regular basis. (The class must be reasonably priced – it’s not reasonable to do an effective outlaw by raising the price to out of reach of most people.) Concealed carry is banned inside government buildings like courthouses. Certain more dangerous weapons like cannon, RPGs, high explosives, etc., may not be stored inside city limits, and their possession inside city limits is banned. Weapons like cannon, RPGs, high explosives, etc., require their own specialized license for mere possession outside of city limits. Finally, better enforcement of the laws which we already have.

    I don’t think most gun nuts would be happy with what I’ve just outlined. I do think that the second amendment gives us lots of room to work with.

    The technological facts of today may mean that the second amendment’s general principle is no longer a good idea. I will be the first to admit that. I’m pretty ok with judicial fiat to say that the second amendment doesn’t cover WMDs nor other weapons banned by international convention.

    However, there is a similar problem with the fourth. I am loathe to admit even the possibility, but there may be a compelling argument for some exceptions to the fourth amendment’s protections. There may be a good argument for allowing the government to do some searches and seizures without individualized suspicion. For example, the TSA. As loathe as I am of the TSA, if there was no TSA, and if lots of planes were getting bombed without the TSA, enough that flying became impractical or especially dangerous, then that seems to be self-defeating logic, and there should be a TSA. I need to take a shower now after having said that. I feel dirty.

  • EnlightenmentLiberal

    To continue: Maybe even require a class and license to own even a conventional handgun or rifle. Arguably, the original understanding also included required mandatory training. Say a once a year class or a twice a year class that’s sort of like modern boot camp. Does not come with military obligations of any kind, but it does get you a license to own conventional firearms and for concealed carry. Again, license is to the person, and not to the gun. And again, to avoid constitutionality issues, the class must be widely available, and it cannot be priced so high that it becomes impractical to the average person – e.g. you cannot effectively outlaw possession of firearms by making the licensing cost extreme.

    Oh boy, I wonder how much the gun nuts would froth at that.

  • EnlightenmentLiberal

    One last bit. In light of other laws and amendments that outlaw poll taxes, I think that the right thing to do is to provide the class and license as free of charge, and have the government subsidize all of it.

    It also has the nice happy coincidence where gun nuts – who are probably anti-government nuts – will have to attend a government subsidized class in order to get their guns. Oh, the delicious irony.

  • colnago80

    Re EnlightenmentLiberal

    Just for your information, when discussion arose on Brayton’s previous blog on Scienceblogs relative to the meaning of the 2nd Amendment, several commentors claimed that the 2nd Amendment prohibited the government from banning private ownership of nuclear weapons.

  • davek23

    From the linked article:

    Perry also claims that “[t]he American people mistakenly empowered the federal government during a fit of populist rage in the early twentieth century by giving it an unlimited source of income (the Sixteenth Amendment) and by changing the way senators are elected (the Seventeenth Amendment).“

    If he thinks the American people were wrong and unconsitutional, he should call for them to be dissolved.

  • EnlightenmentLiberal

    @colnago80

    By some perverse literalistic legalistic ruleslawyering reading, they might be right. However, anyone who seriously proposes that this should be the law and policy can be safely ignored. I am ok with judicial override of the constitution in this silly case. Some people might think the right to own guns is bad, but it’s not going to bring about the downfall of civilization. A good lower bounds threshold is the fall of civilization. If your anything leads to the downfall of civilization, then it’s time to rethink.

  • abb3w

    @36, EnlightenmentLiberal

    And I win on both counts, right?

    I’m inclined to prefer the assessment of a expert in the legal profession over an amateur as to what the law is. As to what the law “should” be, you’ve not specified what your premise across Hume’s little gap is, much less convinced me to accept it. So, you seem instead to lose on both counts.

    @36, EnlightenmentLiberal

    There’s the proper jurisprudence of the law, there’s what the courts actually do with the law, and there’s what the law should be.

    The “should” appears what I would term the political question, and the “actually do” is what the state of what the law legally is — per Article III.

    Without specifying the context, “proper” seems meaningless. Politically proper? That’s the former. Legally proper? See Article III, which says the courts answer the controversies over what that means, making what they do “legally proper” pretty much by definition. The third context looks to be an illusion of sloppiness at Hume’s gap.

  • EnlightenmentLiberal

    @abb3w

    As a partial joke, I could reference SCOTUS DC vs Heller as an expert legal opinion, in fact the best legal opinion that one can get.

    Also, w.r.t. not understanding “proper jurisprudence” as a distinct thing from “historical jurisprudence” and from “what is the ideal law, or at least is there a preferable law?” – I don’t know what kind of silly game you’re playing, but I’m not interested.

    Us reasonable people recognize the the utility and need for a separation of judicial power from legislative power. Legislative power is the general power to decide what the laws should be and to change the laws in accordance with our morals and goals. We reasonable people recognize a distinct power called judicial power. We reasonable people also recognize that judges sometimes decide cases and law wrongly, and that’s the distinction between proper judicial power and improper uses of judicial power.

    You are right that it does eventually come down to morality, which is itself necessarily based on a few “self-evident” propositions, like: let’s try to make the world into a better place to improve happiness, safety, material wealth, self determination, and so forth.

    Of course, if you want to argue that Plessy v. Ferguson was not wrongly decided, or that it doesn’t make sense to say that Plessy v. Ferguson was wrongly decided, then please be my guest. I don’t care much for such intellectual nihilism and sophistry.

  • abb3w

    @53, EnlightenmentLiberal

    As a partial joke, I could reference SCOTUS DC vs Heller as an expert legal opinion

    I’m fine with that. Note the distinction I’m making. That a statute or ruling may be politically bad doesn’t mean it’s legally bad. (Not that I’m particularly inclined to argue Heller was a politically bad ruling. That would require addressing how to define the nature of “bad” in the political sense, which is a larger can of worms that I’m dumping back into the root cellar under the rug.)

    @53, EnlightenmentLiberal

    I don’t know what kind of silly game you’re playing, but I’m not interested.

    The length of your reply would seem to belie that. Or perhaps you’re indicating you’re only interested in expounding your own ideas, and uninterested in whether alternatives have higher merit?

    @53, EnlightenmentLiberal

    We reasonable people also recognize that judges sometimes decide cases and law wrongly

    I can see two sorts. First, there’s what might be called “temporary errors”, where a subordinate court issues a ruling that is later overturned by an appellate court; in that case, the lower court got what the law says “wrong” as a matter of law. This, however, seems trivial; in that sense, the DC court got the law wrong and was corrected by the Supreme Court, which issued the definitive word on what the law is. However, more often people who say the courts got an issue “wrong” are referring to cases like Roe v Wade, Korematsu v US, Oregon v. Mitchell, and so on. There, as a matter of law those rulings were all correct according to the apex authority on the question, according to the letter of the highest law in the land. The sense they may be “wrong” is only in the political context. In the case of the Mitchel case, the law has since been changed.

    This still leaves the question of cases such as Gobitis and Barnette, when the SCOTUS changes its mind and rules an earlier verdict in error. However, until such verdict is issued, the law remains the same. (My understanding from several lawyers and from Wikipedia is that as a technical point of law, Plessy was not overturned by Brown.) I would regard such overturning of precedent political, a byproduct of the imperfect insulation of the judiciary from the political process, and the issuance of such precedent-striking rulings marking changes in what the law is.

    So, I would say Plessy v. Ferguson can only meaningfully be said to have been wrongly decided in the political sense; and that at the time the ruling was issued, it was correctly decided in the legal sense. (Ditto the SCOTUS ruling for DC v Heller.) My objection would be that when you say judges sometimes decide cases and law wrongly, the word “wrong” is ambiguous as to whether you are talking about what the law is, or what the law should be. The apex courts have final word on what the law is; the legislative process gets to try and change what the law is to what it ought to be. Your ambiguous usage appears to reduce to the other two cases.

    When propositions are put forward as “self-evident”, that seems invariably a pointer as to where an axiom is being taken for which alternatives are possible. (“The Axiom of Choice is obviously true, the Well–ordering theorem is obviously false; and who can tell about Zorn’s Lemma?”)

  • EnlightenmentLiberal

    ambiguous as to whether you are talking about what the law is, or what the law should be.

    I’m surprised. Do you really not understand the third option in this case? Let me try one more time.

    There might be a law on the books which is a bad law. I might want that law to be changed by the legislative branch. However, I might also want the judges to uphold this bad law. Do you understand how I might want this?

    For the sake of argument: I may believe that the second amendment is a bad law and we should not have that law. I may want the legislative process to repeal the second amendment. However, at the same time, I may want the judicial branch to uphold the law, because I believe that proper jurisprudence is to uphold the law, in order to foster a culture of rule of law, because fostering a culture of rule of law is more important than removing this one bad law. Thus, I may simultaneously believe it’s a bad law which should be changed, but simultaneously criticize the judicial branch for removing it for improper reasons contrary to the rule of law.