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[untenured]

Acrimone you sneaky scavenger dude you.

Untenured

[prytania3]

Acrimone you sneaky scavenger dude you.

Untenured

Hey, I thought the clues were supposed to start NEXT Friday.

[infopri]

Acrimone you sneaky scavenger dude you.

Untenured

Hey, I thought the clues were supposed to start NEXT Friday.

No, look back to acrimone's post on the scavenger thread.  He's going to spend the next week seeding clues throughout the fora, and sometime next Friday or Saturday he will give us the signal ("Go!") to start working the clues.

For now, if you happen to come across a clue, you're supposed to just make note of it (so you can find it again), but not follow where it takes you.  We're also not supposed to go looking deliberately for clues until we get the go-ahead.

[octoprof]

First of all, those who perished at VT died because a mentally defective person, one who was caught by the system and then allowed to go on his way, went berserk.

So the requirements for being institutionalized against one's will are strict.

Speaking as someone who doesn't want to be institutionalized, jailed, executed, or in any other way deprived of my liberty by the state, I think the requirements for being institutionalized against one's will SHOULD BE strict.

For the record, those requirements vary by state law. I'm not sure Federal law comes in to play here.  In some states, you can have someone put in a psych ward for a 48 hour observation on little more than your word. In other states, you have to jump through many legal hoops, including going to court, to have someone put in for psych evaluation.  I have lived in each one of these states.

Despite the difficulty in getting the person in question in for the psych eval in the second scenario (a family member who was making threats to kill other family members, every day over weeks and weeks of time, recorded (and he knew it) in phone conversations...), I still prefer living in the second state situation.  I don't want to be taken in just because someone thinks I'm strange (oops!).  The second is what is called a "patient's rights state."

[anthroid]

Thanks for bumping this, Octoprof.  I was going to get to it but you beat me to it.

[helpful]

What do people think of the Suipreme Court saying D.C. could not legislate against handguns. Seems to me it goes against state rights to make laws for their particular circumstances.

[t_r_b]

There are all kinds of weapons that our government forbids its citizens from possessing. Even if we accept the (in my mind dubious) premise that the whole "well-regulated militia" thing is meaningless, why shouldn't the government add handguns to that list? They certainly kill enough people. I don't have a problem with people owning rifles and shotguns, but handguns clearly do more harm than good.

It used to be that politicians lined up to boast about how they stand for law and order. Now they line up to praise the court for thumbing its nose at police departments everywhere. Next thing you know they'll be blowing off the army brass when making tactical military decisions. What's that? They're already doing that too?

[infopri]

What do people think of the Suipreme Court saying D.C. could not legislate against handguns. Seems to me it goes against state rights to make laws for their particular circumstances.

State law can't trump the U.S. Constitution (as interpreted by the U.S. Supreme Court), and according to this decision the Constitution says that the government cannot prevent people from owning certain kinds of guns.

[t_r_b]

But this particular piece of the Constitution was explicitly intended to bolster a state, rather than a federal, institution (the "well-ordered militia"). How can a right intended to bolster a state-regulated institution invalidate state laws regulating that institution?

[infopri]

But this particular piece of the Constitution was explicitly intended to bolster a state, rather than a federal, institution (the "well-ordered militia").

Actually, no.  Like all the rest of the first 10 amendments to the Constitution (except the Tenth), the Second Amendment does not give the states any rights or powers; it simply limits the power of the government.  (Note that the language, echoing the language found in the First Amendment, is, "[T]he right...shall not be infringed.")  The Founding Fathers were concerned with the power of the federal government, but the Fourteenth Amendment has been interpreted to apply many of the restrictions on the federal government to state governments as well.  (This interpretation is why, for example, the First Amendment protects us from state-government censorship, as well as from censorship by the federal government.)

Thus, this decision is "protecting" citizens from the power of the government to take away their guns.  The decision (which, I should mention, I haven't read; I'm basing my replies on the report of the case in the New York Times) has rejected the notion that the individual right to bear arms is restricted to service in the militia.

According to Justice Scalia, the “militia” reference in the first part of the amendment simply “announces the purpose for which the right was codified: to prevent elimination of the militia.” The Constitution’s framers were afraid that the new federal government would disarm the populace, as the British had tried to do, Justice Scalia said.

But he added that this “prefatory statement of purpose” should not be interpreted to limit the meaning of what is called the operative clause — “the right of the people to keep and bear arms, shall not be infringed.” Instead, Justice Scalia said, the operative clause “codified a pre-existing right” of individual gun ownership for private use.

[Click here for the full article.]

The dissenting opinion disagreed with this interpretation.

It should be noted, BTW, that this decision does not invalidate all gun-control regulation.  I haven't read the actual decision (my understanding is based on what has been reported, and news reports of court decisions tend to focus on the headlines and don't capture the decisions' subtleties), but I gather that the decision's scope was fairly narrow and would leave most current gun-control laws intact, although of course many of them will be challenged (and already have been, in the past 48 hours).

How can a right intended to bolster a state-regulated institution invalidate state laws regulating that institution?

First, the Second Amendment does not address federalism, which has to do with the relationship between the state and federal governments.  But, more to the point, I repeat: State law cannot trump the U.S. Constitution.  Ever.  Period.  The U.S. Constitution (as interpreted by the U.S. Supreme Court) is the supreme law of the land; there are no exceptions.  Moreover, you've framed the question I think you meant to ask incorrectly.  (The "right" isn't invalidating anything.)  I think what you're really asking is, How can the Constitution protect a right intended to bolster a state institution (the "well-regulated militia"), and simultaneously limit the states' ability to regulate said militia.

The decision, as I understand it, says (implicitly:) that the state can regulate its own militia, but (explicitly:) it cannot take away its citizen's guns outside of the militia--in their own homes, in this case.

[t_r_b]

A few points:

1. if we're going to play the original intent game (the merits of which I question, but which the court majority seems to like), there's a strong historical argument to be made that the purpose of the second amendment was to ensure that state militias would limit the power (and the need for) a federal standing army. For purposes of assessing the framers' intent, their ongoing debates about the merits of citizen soldiers vs. professional soldiers, and about the balance between state and federal power, need to be taken into account.

2. To say that the Constitution reserves certain regulatory powers to the states is not to say that state law trumps the Constitution - far from it. State gun laws, by my reading, are constitutionally valid because the second amendment implicitly reserves the regulation of privately held weaponry to the states (of course Justice Scalia probably sees this differently than I do).

3. Even if we accept the premise that the "right of the people to keep and bear arms" is an individual right, the militia clause remains important because (as Scalia notes) it specifies the purpose of that individual right. Scalia himself (and every sane person) recognizes that there are limits to constitutionally protected rights, and his ruling acknowledges that the government can impose reasonable regulations on gun ownership. The question then becomes, by what criteria shall we determine whether a given regulation unreasonably infringes on second amendment rights? It seems to me that to answer that question, we ought to take into account the purpose of the right as stated explicitly in the amendment itself. In other words, an originalist interpretation should assess the merits of restrictions on the individual right (like the handgun ban) at least partly according to whether they interfere with the right's purpose of preserving the militia. In any case, Scalia's desire to brush the militia clause under the rug hardly seems consistent with his originalist and literalist cred.

The fundamental issue here isn't actually the individual right vs. collective right thing. Either way, there will be limits on the right: some kinds of weapons that can be reasonably prohibited. The question is where to draw the line between reasonable and unreasonable limits. The court could quite easily have ruled that an individual right to bear arms exists, but that the DC handgun ban constitutes a reasonable limitation on that right. Instead, they put handguns on the "unreasonable" side of the line, but the constitutional rationale for doing so is far from clear to me. Why is it unreasonable to prohibit handguns, but reasonable to prohibit machine guns? If it's simply a matter of the danger they pose to the public, why is SCOTUS better qualified than DC lawmakers to assess how dangerous handguns are?

According to the Times, Scalia's standard is whether a particular type of weapon is "typically used for self-defense or recreation," but used by whom? where? Handguns haven't been "typically used" by law-abiding citizens in DC for 32 years. It's a case of circular reasoning: the ownership of widely used guns is constitutionally protected, but the guns would presumably not be widely used if they were prohibited. If there were not a federal machine gun ban in effect now, and if a fair number of gun lovers owned machine guns "for self-defense or recreation," would it then be unconstitutional for the federal government to impose the ban that Scalia has just stated is constitutional? If someone invents a new kind of weapon, is it only constitutional for the government to ban it right away, before it becomes popular? What if the damage caused by the weapon only becomes clear after it ends up in thousands of American homes? Are we then just screwed, because the government didn't enact the ban in time? Keep in mind that this is more or less exactly what has happened with handguns.

[infopri]

Excellent post, TRB.  I'd like to address your last point, which I think is crucial:

According to the Times, Scalia's standard is whether a particular type of weapon is "typically used for self-defense or recreation," but used by whom? where? Handguns haven't been "typically used" by law-abiding citizens in DC for 32 years. It's a case of circular reasoning: the ownership of widely used guns is constitutionally protected, but the guns would presumably not be widely used if they were prohibited. If there were not a federal machine gun ban in effect now, and if a fair number of gun lovers owned machine guns "for self-defense or recreation," would it then be unconstitutional for the federal government to impose the ban that Scalia has just stated is constitutional? If someone invents a new kind of weapon, is it only constitutional for the government to ban it right away, before it becomes popular? What if the damage caused by the weapon only becomes clear after it ends up in thousands of American homes? Are we then just screwed, because the government didn't enact the ban in time? Keep in mind that this is more or less exactly what has happened with handguns.

This isn't the first time the U.S. Supreme Court has gotten itself into this problem of circular reasoning and the use of current practices as a test.  In Katz v. United States (389 U.S. 347 (1967)), the Court created a reasonable-expectation standard for privacy in determining whether law enforcement could constitutionally place a warrantless wiretap on a public phone booth.  Because people had a "reasonable" expectation that conversations held in a phone booth (which in 1967 were still fully enclosed in most cases), the wiretap was ruled unconstitutional.  How would the Court rule now, when public phones (where they still exist) generally are open-air, enabling any passer-by to overhear the conversation?  Would the Katz wiretap have been ruled unconstitutional had it occurred 40 years later, in 2007?  I suspect that the answer is no.  (In fact, it's interesting to compare the Katz decision with the one reached in Olmstead v. United States (277 U.S. 438 (1928)) 40 years earlier, in which the Court said it was constitutional to place a warrantless wiretap on a private home, if doing so did not involve a physical intrusion into the home itself.)

Using the same "reasonable expectation" test created in Katz, the Court ruled in Kyllo v. United States (533 U.S. 27 (2001)) that a Fourth Amendment violation occurred when law enforcement used heat-sensing equipment without a warrant to detect from outside whether Kyllo was using high-intensity lamps inside to grow marijuana.  The Court ruled that the use of the lamps was a "search" that violated the Fourth Amendment largely because the sense-enhancing technology (i.e., the heat-sensing equipment) in question "is not in general public use."  Interestingly, in Footnote 6, Scalia wrote, "The dissent [authored by Stevens] argues that we have injected potential uncertainty into the constitutional analysis by noting whether or not the technology is in general use may be a factor. [...] That quarrel, however, is not with us but with this Court's precedent."  He then cites still another case.

Stevens said in his dissent to Kyllo, "Yet how much use is general public use is not even hinted at by the Court's opinion [...]  In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available."

Truer words were never written.  These decisions had to do with the right to privacy under the Fourth Amendment rather than guns under the Second Amendment, but the problem of using current expectations or practice as the test of whether something passes constitutional muster is similar and somewhat problematic--and certainly causes problems for strict constructionists, I would think.  As someone somewhere (can't remember who/where, sorry) pointed out, the weapons "typically used" in 1791, when the Second Amendment was ratified, were muskets and the like; a strict constructionist, therefore, ought to be ruling that ownership only of muskets and the like are protected by the Second Amendment.

[t_r_b]

These decisions had to do with the right to privacy under the Fourth Amendment rather than guns under the Second Amendment, but the problem of using current expectations or practice as the test of whether something passes constitutional muster is similar and somewhat problematic--and certainly causes problems for strict constructionists, I would think.  As someone somewhere (can't remember who/where, sorry) pointed out, the weapons "typically used" in 1791, when the Second Amendment was ratified, were muskets and the like; a strict constructionist, therefore, ought to be ruling that ownership only of muskets and the like are protected by the Second Amendment.

That was me (and possibly others as well: I certainly didn't come up with it). I was being a bit tongue-in-cheek at the time, but you're absolutely right: by Scalia's standard, the handgun ban would have been perfectly constitutional in the 1790s, even though it is not constitutional today. (And of course the same problem arises as with privacy-infringing technology: by the time it really becomes a problem, it is already "typically used"). Clearly Scalia and Stevens have been duking this one out for quite a while.

I'm still stuck on the fact that Scalia chose to adopt this highly problematic and historically contingent standard for constitutionality while quite openly disregarding the explicit language of the amendment. Perhaps the best lesson to draw from all this is that strict construction really is (and always has been) nothing but rhetorical window dressing for particular policy preferences. Where a clause fits Scalia's purposes, he reads it strictly; where it doesn't, he dismisses it in favor of whatever makes more sense to him at the time.

[infopri]

Using the same "reasonable expectation" test created in Katz, the Court ruled in Kyllo v. United States (533 U.S. 27 (2001)) that a Fourth Amendment violation occurred when law enforcement used heat-sensing equipment without a warrant to detect from outside whether Kyllo was using high-intensity lamps inside to grow marijuana.  The Court ruled that the use of the lamps was a "search" that violated the Fourth Amendment largely because the sense-enhancing technology (i.e., the heat-sensing equipment) in question "is not in general public use."

Damn.  Sometimes my fingers get away from me when they type.  This should have said that the use of the heat-sensing equipment was a "search," not the lamps.  Sorry for any confusion I caused.

Perhaps the best lesson to draw from all this is that strict construction really is (and always has been) nothing but rhetorical window dressing for particular policy preferences. Where a clause fits Scalia's purposes, he reads it strictly; where it doesn't, he dismisses it in favor of whatever makes more sense to him at the time.

There is little question that the so-called strict constructionists are just as policy-driven as the so-called "activist courts" of days gone by.

[ideagirl]

But this particular piece of the Constitution was explicitly intended to bolster a state, rather than a federal, institution (the "well-ordered militia"). How can a right intended to bolster a state-regulated institution invalidate state laws regulating that institution?

Infopri and others have gotten into the state vs. feds issue, so I'm just going to respond to the first part--your statement that the first clause of the 2nd Amendment shows what its "explicit intent" was and thus limits the scope of the second clause to arms used by militia members while in militia service. According to the Supreme Court opinion--and they cite various authorities, of course, in support--prefatory clauses clarify the clause that follows, but they do not limit its scope. Or as Scalia put it (he's quoting another source), a preamble or prefatory clause "cannot control the enacting part [i.e., here, the second clause of the amendment]... where the enacting part is expressed in clear, unambiguous terms." In other words, "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause."

In short, the part that you're reading as the "purpose" of the amendment, which you interpret as defining and thus limiting the scope of the amendment, is not--under normal rules of statutory construction--correctly read as a statement of purpose that limits the scope of the amendment. Rather, that first clause exists to clarify any possible ambiguities in the operative or enacting clause.

So here, for example, the reference to militias is correctly read as clarifying what "arms" means: the prefatory clause's militia reference clarifies that when they said "arms," they meant working weapons equivalent to what militia members would normally carry, and used for the same purpose militia use them (i.e. defensive killing of people). Without that prefatory clause, it would be possible to read the operative clause in a more limited way--"No, our founding fathers didn't mean working guns like what police and soldiers carry, they just meant we could keep grandpa's antique engraved rifle hanging over the mantlepiece..."