To the people that say the government of the United States can’t possibly be overthrown by it’s own people, I openly wonder:
Why not? We have failed or been in extended policing actions (instead of “winning”) in every engagement that involved non-combat-line warfare since WW2. We failed in Korea, Vietnam, Serbia/Croatia, Somalia, Afghanistan’s insurgent phase (after the proper military was wiped out), and Iraq 2’s insurgent phase. (The Gulf War was against an actual military and was successful)
If, say, 500,000 people marched in formation on some particular location (say DC), I have no doubt that the US military (assuming for this scenario that 100% of the military was loyal to the state) could wipe them out.
I am far more dubious that if 1/5th the number of people were operating in a similar theatre (like DC) in a guerrilla fashion that it wouldn’t actually come close to success. It would depend on how much the populace supported them, of course, but assuming a passive populace or supportive populace an an organized, targeted resistance, it could certainly be done. With the small arms we have, today.
That’s a hugely simplistic view. Do you know what the basis for the civil rights legislation of the 60’s was? The commerce clause of the constitution. What does commerce have to do with civil rights? More than you might think. The law is NEVER just the law.
Plus, a constitution, by definition, doesn’t set down specific rules, but guiding principles. It’s much like the difference between statutes and administrative regulations. Have you ever wondered what the difference is? It’s actually a course in law school called administrative law. Certain functions cannot be delegated by the legislature to the executive. Those functions have to be performed via statute. But statutes and the legislative process is too unwieldy to deal with the minutiae of actual implementation.
Similarly, a constitution is not a law, but set of guiding principles that need to be implemented via statute and judicial precedent.
The second amendment amended this away. Before, the President could discipline militiamen for having the wrong kind of arms. The second amendment blocks that. If he started telling the militia what arms are acceptable, their right to bear arms would have been limited as to time and place AKA infringed.
Now, the President could still order the militia not march on Washington. But since the militia could keep and bear all the most modern arms, that order would be hard to enforce.
Of course, this literal interpretation was not intended. That’s because the intent of the Bill of Rights was not to provide enforceable law, but to get the hold-out states (North Carolina and Rhode Island) to sign on as part of the United States.
The Bill of Rights wasn’t meant to be taken literally, and can’t be taken literally, because it mostly consists of platitudes. There is at least one exception. – the $20 clause in the seventh amendment. And that’s totally ignored, demonstrating how the literal wording has nothing to do with how the words are interpreted.
I’ll assume you don’t think I actually said that - I don’t think it’s impossible. But I don’t think it would be all that easy, and more to the point, I think the idea of it ever being necessary is a paranoid fantasy.
Where the US military fails, it does so because it is generally trying to do good. The vast majority of the time they actively try (to varying degrees) to avoid civilian casualties, even if it seriously limits their ability to attack their enemies. Can we expect the army wielded by the evil Supreme Dictator Hilary Clinton in the bleak, dystopian future of 2018 to show such restraint when crushing rebels?
This is based on the unlikely assumption that such a situation will come up any time soon. If an American government were to become so unpopular and tyrannical that a rebellion was required, I wouldn’t expect the military to follow their orders. I must admit ignorance on this matter, but I am assuming it would take decades to get the US military to a point where it became such an insular culture that ordinary soldiers would side with such a government over a legitimate popular uprising.
Something that I’d think would advance the anti-gun control cause is evidence strongly suggesting a legitimate uprising against a tyrannical non-foreign government failed at least partly because of a lack of weapons available to would-be militiamen. Out of interest, is there any?
All this being said, I should point out that I speak only as a foreign onlooker. What Americans do with their guns in the privacy of their own country isn’t really any of my business.
Actually, I thought it was the 14th amendment. You’re probably right too, since the commerce clause was needed to allow Congress to enforce civil rights laws on the private sector, but the 14th amendment was all they needed to enforce it at the public sector level, and most of the Civil Rights Act is about stopping government discrimination.
They are more than principles and not a guide, but binding law. Your analogy of statutes vs. regulations is a good one. But it makes my point, not yours. The differences between the three(constitutional law, statutes, and administrative regulations) don’t change the fact that they are all binding law.
It is law. It is officially known as the supreme law of the land and is enforced by the courts as such. You’re right that it’s not a statute, or maybe you’re disagreeing with the terminology, I’m not sure. But it is just as binding as any law passed by Congress. Otherwise, Congress isn’t legally Congress. It’s existence is just a guideline, as are their two-year terms.
The fact that it’s not 100% clear about every situation doesn’t mean it can’t be taken literally. We literally have freedom of speech, freedom of religion, and the right to be free of unreasonable searches and seizures and trial by a jury of our peers.
I assure you, the judicial branch takes the Bill of Rights very literally.
Your argument was that provisions of the constitution should be interpreted no differently than the terms of a statute. You seem to recognize that they serve different purposes but are unwilling to admit that they should be treated differently in their application. I find that impossible to understand.
A constitutional provision that states I can keep a firearm has to be assumed to have a broader purpose that a statute that gives me that right. Any judge reading the former should look carefully at the implications of restricting that right and strive to understand how it relates to the entire panoply of rights and principles in the document as a whole.
A statute giving me such a right wouldn’t require the same level of care and could be viewed in the more isolated context of its legislative history. it should be understood in light of any applicable constitutional principles (assuming none directly on point) and related laws and precedent, but its interpretation doesn’t require or deserve the same degree of care.
Additionally, I may not even want to use the same rules of interpretation for the two. If the constitutional provision for example specifies musket rather than firearm, it would be ridiculous to read the provision literally hundreds of years later. However if the statute specifies bolt action long rifles, I would in fact want to read that provision literally.
Technically, both provisions can be changed by legislative means, but it’s absurd to require a constitution amendment in the first case when a cogent argument can be made for re-interpreting the provision instead. You can’t legitimately make that argument in the case of a statute.
We do and we don’t. All of those freedoms are linited in a host of ways both by statute and judicial precedent. Take the definition of speech for example. Certain forms of speech are forbidden. You can’t yell fire in a crowed theater. Certain non-speech is speech. What constitutes an unreasonable search? Not all searches require a warrant for example. If you’re arrested at a traffic stop, they can search your vehicle incident to the arrest. Is that really reasonable? I don’t think so.
They should only be treated differently to the extent that they are specific. The courts determine what is “cruel and unusual”, for instance, and also decides when Congress has passed a law abridging freedom of the speech, something which Congress is categorically forbidden to do.
We actually have an example of unclear meaning in the health care law. The law states that subsidies will be given to people buying insurance from state exchanges. The government is trying to claim that the intent of the law was to provide subsidies to federal exchanges too. Except it doesn’t say that. So is there a difference in how the courts should approach the health care law vs. a constitutional provision that is also not 100% clear?
This is a good argument, at least until you get to re-interpreting the provision. In the absence of case law, where a question comes up for the first time, I can see re-interpreting an old provision. That happens with legislation as well, every once in awhile you hear about a really old law coming before the courts applied to a new situation(such as the anti-Injunction Act in regards to the health care law). But if there is a history of case law regarding what the provision means, it shouldn’t be reversed just because it “needs” to change for whatever reason.
The word ‘reasonable’ is very fungible, so I get that. The 1st amendment, however, is much more specific and absolute, hinging only on what the word “abridge” means. And okay, sometimes what speech means. The courts say that any “expression”, such a dancing, would count as speech.
Actually, there is no forbidden speech as far as I can tell. You can actually yell fire in a crowded theater, but you pay the consequences if you cause a panic. However, it is very difficult for the government to censor or preempt speech. The only cases I know of are when it comes to revealing national security secrets.
There may be other examples I don’t know of, so I’m not being absolutist here. But laws governing speech have to survive something known as “strict scrutiny”, which in practice is very hard to do. For those who don’t know, strict scrutiny means the law has to serve a compelling governmental interest, it has to be narrowly tailored to serve that interest, and there can be no alternative means to serve that interest. It’s a heavy burden of proof indeed. And it’s required because the 1st amendment is binding law.
My cite is the Constitution. The Declaration of Independence was a revolutionary document – revolutions are illegal by definition, so it had to appeal to natural-law concepts. But the Constitution was a legal document, the fundamental law of a new government intended to last forever, and, as we all know, not a suicide pact. As for The Federalist, I know of no paper that so much as mentions the right to bear arms (or revolt); if you do, please cite it. IIRC, Publius did not even approve of the notion of adding a BoR to the Constitution.
Even assuming you have a provision that looks specific, one of the points I’m making is that you won’t necessarily use the same rules of interpretation.
And there are a variety of reasons for why different standards of interpretation do and should apply.
Well, I’m not sure what you mean by ‘freedom’ then. That implies freedom from consequences. By your definition, there was also freedom of speech in the old USSR, there were just consequences for that freedom.
By that reading, the 2nd Amendment amounts to, not an actual constitutional requirement, but a general statement of intent, that American military defense will be primarily militia-based. It didn’t work out that way – every war we’ve fought since independence was fought mainly by the regular federal armed forces; and there’s nothing unconstitutional about that, and nothing unwise about it in military-strategic terms, and, apart from the expense, we have never had any real reason to regret it.
Okay, then let’s take my example of the lack of clarity in the health care law that I pointed out. How should that be interpreted, and how would that differ from how you’d interpret an equally ambiguous constitutional provision?
Democrats are arguing that their intent was to provide subsidies in all 50 states, whether they had a federal exchange or a state exchange. The law’s text says otherwise, although it’s not so specific as to ban subsidies for federal exchanges. How should the courts approach that decision, when it comes?
The government can’t punish the speech itself, only tangible harm that it does. If your words start a panic, then you started a panic. Here’s a better example: libel. Libel is only punishable if it does actual harm. If everyone knows it’s a lie because it’s so ridiculous, it’s not punishable.
Here’s another example: The Stolen Valor Act. The act was struck down because while we all agree that lying about getting medals is pretty reprehensible, no one is actually harmed by the practice.
Justice Anthony Kennedy, writing for a plurality consisting of himself, Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, wrote that false statements are not, by the sole reason of their falsity, excluded from First Amendment protection.[23] “The Court has never endorsed the categorical rule the Government advances,” Kennedy wrote. “Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”[24] Even though there are several examples of the use of penalizing false speech (like perjury), Kennedy argued that “[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech…”
But how can any court take the 2nd Amendment literally? Consisting of two (or maybe even three) clauses with no very clear relationship to each other, it is really the most ambiguous element in the Constitution. Debate and litigation over what it means, including such basic questions as whether it embodies a collective or individual right, goes back to the 1820s.