It was interesting however to hear that most jurists (even conservative ones) did not believe 30 years ago that the 2nd Amendment described an individual right. Eugene Volokh used Scalia as an example for this. I'm a little sceptical.

right. whether volokh is right or not at the end of the day his argument was much more coherent and tight. both of these guests had a point of view a prior, but volokh seemed to be able to collect a body of arguments which are much less tortured from a third party (lay) perspective.

What an embarrassment for the Left.

Is it my imagination, or is it not in fact the case that Mr. Volokh's position boils down to: Every Tom, Dick, Harry, and Mary has the right to a limitless supply of machine guns, hand grenades, mortars, military aircraft, bombs, and, hey, why not: nukes? Clearly, this had to be what the framers of the Constitution had in mind, right? EW

Eastwest wrote on 07/07/2008 at 09:58 PM

Is it my imagination, or is it not in fact the case that Mr. Volokh's position boils down to: Your are correct. It is your imagination.

I haven't watched the diavlog, yet. This is in response to the crowing here that the Heller is somehow based on an obvious reading the text of the Bill Of Rights. How about we examine the text of the first two amendments?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That sounds fairly absolute, no? Just concentrating on the speech right, for clarity: Congress shall make no law abridging the freedom of speech. To abridge is to reduce, so “no law reducing freedom of speech.” Even so, it’s been ruled that the equivalent of yelling “fire” in a crowded theater is not a constitutional right. Even the most absolute rights seem to have some level of restriction.

A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

This bears a significant conditional in the first clause. A right to bear arms is, by the literal text, compatible

nope. most of the people who are following scalia accept that there should be *reasonable* limitations on the *individual right*. this is one reason that gun control organizations aren't hysterical; they want to constrain and regulate, not abolish (OK, they want to abolish, but they've always known that was a non-starter in 90% of america).

This is the problem when you have non-lawyers talking about the law. They don't make legal arguments and are out of their element. How can anyone take seriously someone who argues that the second ammendment basically means nothing at all. A good portion of this conversation reminds me of my first year of law school as Volohk leads Rakove into intellectual quicksand and the more Rakove struggles to get out the deeper he sinks. I posted in the suggestion section afew weeks ago that they ask Johnathan Turley (who I had for Torts) to debate Volokh. It would have made a much better debate.

Quoting AemJeff:
This bears a significant conditional in the first clause. A right to bear arms is, by the literal text, compatible with a degree of regulation. To what degree is not specified. And interestingly the verb here is “to infinge,” one paraphrase of which is “to exceed the limits of.” If you can read an unconditional right in this language, you’re wrong. If you think that any particular level of restriction is obviously specified here, I’d like to know the basis for your analysis.

Supreme Court decisions are what they are. Arguing that a decision you disagree with is wrong is incoherent. Heller is the law of the land. But if you're arguing that the basis for Heller is trivially found in the text of the Bill of Rights, I think you're kidding yourself.

I am curious if you actually read the opinion? This argument is extensively dealt with by Scalia.

Quoting gwlaw99: This is the problem when you have non-lawyers talking about the law. They don't make legal arguments and are out of their element. I posted in the suggestion section that they ask Johnathan Turley to debate Volokh. It would have made a much better debate.

Yeah, great, it's not a legal argument. Words have meaning, despite the best efforts of lawyers. If you want to argue that the Bill of Rights is written in technical jargon and that the literal meaning of the language contained therein ought to be ignored; that non-lawyers ought not to aspire to understand it without the helping hand of a legal professional guiding us through our naive expectation that the words mean what we think they mean in every other context: I'd say that the document has been corrupted beyond any utility to anybody except lawyers.

Quoting Eastwest: Is it my imagination, or is it not in fact the case that Mr. Volokh's position boils down to:

Every Tom, Dick, Harry, and Mary has the right to a limitless supply of machine guns, hand grenades, mortars, military aircraft, bombs, and, hey, why not: nukes?

Clearly, this had to be what the framers of the Constitution had in mind, right?

EW

Actually EW, I think Volokh stated at least a couple of times that there was an area of "reasonableness" that could be enacted upon. "Is it my imagination" or are you trying to "nuke" his argument...with the unreasonable? Rather fun discussion in any case and I would like to buy Mr. Volokh a Samual Adams in a tall frosty mug!

Quoting gwlaw99: I am curious if you actually read the opinion? This argument is extensively dealt with by Scalia.

I haven't. I will. I hope it's clear that I'm not arguing against the decision itself, but against the argument that the decision stems from an obvious reading of the text. BTW, I shouldn't have lashed out at lawyers quite so explicitly in my last comment, but the notion that a non-technical reading of something as important as the fundamental documents of this nation isn't valid is hard for me to accept.

From Justice Breyer

... In interpreting and applying this Amendment,
I take as a starting point the following four propositions,
based on our precedent and today’s opinions, to which I
believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. ...

It's a long and tedious read but worth the time if you like that kind if material. It is the level of scrutiny that will be applied for future cases that is required that actually makes the ruling significant moving forward.

Quoting AemJeff: Yeah, great, it's not a legal argument. Words have meaning, despite the best efforts of lawyers. If you want to argue that the Bill of Rights is written in technical jargon and that the literal meaning of the language contained therein ought to be ignored; that non-lawyers ought not to aspire to understand it without the helping hand of a legal professional guiding us through our naive expectation that the words mean what we think they mean in every other context: I'd say that the document has been corrupted beyond any utility to anybody except lawyers.

I suggest you read the opinion and try to understand it. It's actually very well written and shouldn't be too difficult.

Quoting piscivorous: From Justice Breyer
It's a long and tedious read but worth the time if you like that kind if material. It is the level of scrutiny that will be applied for future cases that is required that actually makes the ruling significant moving forward.

Thanks for the link, Pisc.

Quoting w_boodle: What an embarrassment for the Left.

Quoting w_boodle: Your [sic] are correct. It is your imagination.

w_boodle: Thank you for your valuable contributions to the discourse. It's always enlightening to see what's passing for deep thought and witty repartee among the wingnuts these days. Tell me: When you were watching the diavlog and Jack Rakove was speaking, did you content yourself with saying, "Shut up! Shut up! Cut his mike! Cut his mike!" or did you indulge in your more probable behavior and fling your poo at the screen?

I don't read any crowing here that Heller is based on any easy reading of the Second Amendment. What I read and what I agree with is that Eugene V. had --to my mind, clearly--the better of *this particular argument*. Maybe it's unfair to pit a very good historian against a very good lawyer in a controversy about what is ultimately a legal question. But that said, and as has been noted already on this thread, Jack R.'s arguments were effectively picked apart by Eugene V., whereas he in turn could not answer Eugene V.'s specific arguments, particularly what could the language of the Second Amendment mean if Congress could define down or away the existence of the militias. What I think is needed for a different discussion of Heller is a lawyer as sharp and knowing as Eugene V. and who disagrees with him aout Heller to discuss this case with him. In a nutshell, on these issues, Jack R. stood not a chance and was happy--it was my impression--finally to get away from pounding of Eugene V.'s superior arguments. Itzik Basman

I thought I should bring up Jack's late father, Milton Rakove. Lately people have been noticing that Barack Obama is a product of Chicago' political scene. Milt wrote two classics on the Chicago Democratic Machine under Richard J. Daley - father of the current mayor -
Don't Make No Waves, Don't Back No Losers - an Insider's Analysis of the Daley Machine; and
We Don't Want Nobody Nobody Sent: An Oral History of the Daley Years You can read about the origin of the phrase "We don't want nobody nobody sent." here.

Quoting thprop: You can read about the origin of the phrase "We don't want nobody nobody sent." here.

My favorite line: "We were known as the Kosher Nostra."

I think the right wing has won this one, Jeff. Although I agree with your reading of the 2nd Amendment and consider the whole "gun liberty" issue to be perverse and much better handled by other democracies, I think that finally we need to accept the settled law, just as the right has to bite the bullet (pun intended) and accept a woman's right to choose, nudity as an expression of free speech, etc. Just as the right wing has found other legal ways to address the issue of abortion (promote adoption, promote teenage abstinence, etc.), progressives need to work harder at gun safety, manufacturing standards, tight control of distribution and other ways to ensure that gun murders and injuries are reduced. I just wish the right wing took seriously other provisions in the Constitution, such as the ban on "cruel and unusual punishment" (torture, execution, incarceration for ingestion of psychotropic substances, life without parole for juveniles, etc.) Due process might be another area they'd like to get up to speed on.

Quoting Whatfur: Actually EW, I think Volokh stated at least a couple of times that there was an area of "reasonableness" that could be enacted upon.

"Is it my imagination" or are you trying to "nuke" his argument...with the unreasonable?

Rather fun discussion in any case and I would like to buy Mr. Volokh a Samual Adams in a tall frosty mug!

Hmmm. OK. If you say so. I guess. Though it does seem to me that the thrust of his argument trends in that direction and sets up the current circumstance where every gun-nut in the country defaults to feeling entitled to own nearly all of my above-listed categories, thus setting up the circumstance where, together with the NRA, it becomes almost impossible to get any sort of reasonable level of regulation established. So, I was almost ready to accede to my getting this impression based on trying to do chores and listen at the same time. Now, however, I think it's just a mildly exaggerated hyper-statement of the actual situation with which we are now more-or-less stuck thanks to SCOTUS decisions of this sort. I still think Rakove has the winning logic and historical background analysis on this topic. Thanks,
EW

Whether "Historian" or "Lawyer," unless one already has a vested interest in skewing the text some other way, the language is out-and-out obvious: "A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed." Pardon me for lapsing into plain English, but it's completely clear from the language that the whole proposition of the sentence stands entirely in relation to the existence of a well-regulated militia which, at the time of the amendment's writing, was the means (and the necessary means) by which the security of a free state is maintained. But private ownership of assault weapons, etc. has exactly no relation in any recent context with maintaining the security of the state. It bears no relation at all in the last hundred years to the current stratagems and techniques used by either the United States or any of its constituent states to counter any hostile forces seeking to destroy the state. (The amendment's language would appear to more easily harmonize with circumstances such as one might encounter in a place like

Short version of arguments: Scalia: [citizens have...] “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Stevens: [the Second Amendment] “was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia,”... [there is no...] “evidence supporting the view that the amendment was intended to limit the power of Congress to regulate the civilian uses of weapons.”

Quoting Wonderment: Short version of arguments:

.....”

Sweet simplicity. EW

Sweet simplicity.

Disclaimer: As a non-attorney, I suffer from diminished capacity and am unqualified to discuss stuff related to human affairs.

If you want to argue that the Bill of Rights is written in technical jargon and that the literal meaning of the language contained therein ought to be ignored; that non-lawyers ought not to aspire to understand it without the helping hand of a legal professional guiding us through our naive expectation that the words mean what we think they mean in every other context: I'd say that the document has been corrupted beyond any utility to anybody except lawyers.

Bravo! Encore! I would second this statement of principle, even with one year of law school, possibly the most time wasted in the my life second only to Confirmation. I recall Kierkegaard used Judge William as the illustration of the penultimate ethical stage of life before the religious stage, in Stages on Life's Way. I recalled this because Volokh acted with almost talmudic skill, and the reasonable part of me resists the predicament, that lawyers should hold preeminent sway in a republic. I agree with Volokh's support for public meaning originalism, but, as Volokh does, it's still possible to cherry-pick those meanings one wants to emphasize. Rakove, I agree with basman and Wonderment, lost

Unfortunately, Volokh's and the lawyers', in the example of Heller, is a hollow victory. This issue has gone back and forth for centuries, and Heller is just the latest skirmish. The republic can take it!

Quoting Eastwest: Hmmm. OK. If you say so. I guess.

...
I still think Rakove has the winning logic and historical background analysis on this topic.

Thanks,
EW

As I knew there was a repetition of my point near the end, I grabbed it for you. The DC gun ban was a GUN BAN...over and above that, there are already many "reasonable" laws on the books. I do understand the left using any argument, even over-the-top ones, to try and disparage laws they disagree with. although sometimes I think in doing so; it is possible that wide brush becomes an insult to the "reasonable" gun owner ...maybe making them even more steadfast in their opinion. But the right does it too, you know like where they point to cracking the skull open of a healthy child with one foot left in the birth canal and sucking its brains out as being a good example of the need to BAN all abortions. Lastly, concerning the "winning logic". Logic seldom somes with a stutter or attempts to baffle with barrage. Volokh, to me, was the one who layed out the logic in plain terms while daring his counterpart to pick it apart.

Volokh clearly walked away the victor in this debate. If you want to read some of the legal thinking that lead up to the Heller decision I suggest that you check out this link:The Embarrassing Second Amendment by Sanford Levinson http://www.firearmsandliberty.com/embar.html#T19
Reprinted from the Yale Law Journal, Volume 99, pp. 637-659 If you followed this story as it lead up to the Heller decision you know that many of the legal people who oppose the Second Amendment were furious at the District of Columbia for taking this case to the SCOTUS because they knew that the jig would be up and that the Second Amendment would be affirmed to an individual right. When you have the likes of eminent legal scholars such as Laurence Tribe asserting that the case for the second amendment being an individual right is a strong one one should recognize that the founders actually intended it to be so. As Volokh asserts this right goes back to English Common Law. The right to keep and bear arms is fundamental to citizens of a republic being able to

Richard:

Perhaps we can get back to a point where we can have reasonable laws that do not infringe on this civil right while protecting the public safety.

In case you don't know where I'm coming from on this, I used to be stridently anti-gun. I have since become mostly supportive of the concept of gun ownership being an individual right -- although I have no plans to get one of my own, I am far less inclined than I used to be to think that others should be overly hampered if this is what interests them. I do think that there ought to be some limits about what's legal to own, and I still favor much more comprehensive record-keeping, registration requirements, and things of that sort, than currently exist. On the practical level, independent of my change of heart, I am about 90% resigned to the fact that this fight has long since been won by the pro-gun side. The last area that I see room for any hope at all is in seeking restrictions at the local level. Therefore, I'd be interested in hearing some examples from you, who I understand to be a gun enthusiast, of what

one year of law school, possibly the most time wasted in the my life second only to Confirmation.

Nice. That actually made me laugh audibly. I needed a good laugh this morning. Thanks, Balt.

Having read many of the early comments before I started watching I was surprised to see the actual diavlog. Mr. Rakove did a fine job of lucidating his position and he has a very strong case. It is probably correct that Mr. Volokh used a rhetorical strategy that put Mr. Rakove on the defensive and clearly made it appear that he had the weaker argument becasue Mr. Rakove seemed very reluctant to actually affirmatively state and defend the proposition that the 2nd amendment was not meant to confer an individual right. Instead, he wanted to present all the background and context so that a person could see on their own that that was a reasonable conclusion, though a bit jarring in the context of how we view the Bill of Rights. Although I largely argee with the comments of EW, Wonderment and Baltimoron, I want to say this. I think that claims by either side that the "language is clear" are ridiculous. The language is, if not downright contradictory, then certainly ambiguous. To Mr. Volokh's protestation that most of the other Bill of Rights amendments are read to confer individual rights, none of the other

One other point: While, as I stated above, there is some strength to the argument of Mr. Volokh that the text of the 2nd amendment prescribing a right has to mean something, it must be noted that interpretation of constitutional clauses, especially short, broad and general ones like those of the Bill of Rights, while it obviously starts in some sense with the text, is not really about textual interpretation. This should be obvious to anyone who has studied the history of the Supreme Court's interpretation of the other Amendments -- one can not reasonably argue that they the decisions and rulings flow primarily from the text of the amendments as written.

Quoting Wonderment: I think the right wing has won this one, Jeff. Although I agree with your reading of the 2nd Amendment and consider the whole "gun liberty" issue to be perverse and much better handled by other democracies, I think that finally we need to accept the settled law, just as the right has to bite the bullet (pun intended) and accept a woman's right to choose, nudity as an expression of free speech, etc.

Just as the right wing has found other legal ways to address the issue of abortion (promote adoption, promote teenage abstinence, etc.), progressives need to work harder at gun safety, manufacturing standards, tight control of distribution and other ways to ensure that gun murders and injuries are reduced.

I just wish the right wing took seriously other provisions in the Constitution, such as the ban on "cruel and unusual punishment" (torture, execution, incarceration for ingestion of psychotropic substances, life without parole for juveniles, etc.)

Due process might be another area they'd like to get up to speed on.

Well said. I agree with every word.

Quoting Abu Noor Al-Irlandee: while it obviously starts in some sense with the text, is not really about textual interpretation.

Abu Noor, how is the above even coherent? If it is the case, then what's the point of referring to the document at all. Why not substitute the first three paragraphs of the first act of King Lear, or better yet, had one existed at the time, a poem by Kurt Schwitters, for the original text? I think us non-legal professionals can reasonably feel bewildered by this assertion.

...it must be noted that interpretation of constitutional clauses, especially short, broad and general ones like those of the Bill of Rights, while it obviously starts in some sense with the text, is not really about textual interpretation... Isn't this too either or? It is really about textual interpretation and other things as well in coming to understand what the text means. I agree that simply looking at and reasoning about the words of the provision in question is not a sufficient means of trying to resolve their meaning, but it is a necessary means. And let's not generally be too hard on lawyers: we're people too, cut us we bleed, and so on. Itzik Basman

AemJeff and Itzik Basman, Perhaps I didn't state it well. What I mean is this, the Constitution refers to concepts like freedom of speech, press, religion, etc. Once you say there is a right, you've pretty much exhausted how helpful the text can be. It doesn't decide many cases for you. (Especially true when the text is ambiguous or contradictory, as the 2nd amendment conditional militia clause, or the tension between the establishment clause and the free exercise clause.) If one reads the cases on these issues, the arguments do not turn on the text. By this time, it largely turns on arguments about precedent and applying precedents to current situations. As precedents are being built up, there is more reliance on history and frankly on policy considerations. So, let me ask you, is burning crosses in front of the house of the first black family to move into a neighborhood protected by the first amendment? The answer doesn't come from the text of the first amendment. Is a newspaper printing an advertisement with false statements about a public official protected by the first amendment or can it be sued for libel? The answer doesn't come

Quoting basman: ...it must be noted that interpretation of constitutional clauses, especially short, broad and general ones like those of the Bill of Rights, while it obviously starts in some sense with the text, is not really about textual interpretation...

Isn't this too either or? It is really about textual interpretation and other things as well in coming to understand what the text means. I agree that simply looking at and reasoning about the words of the provision in question is not a sufficient means of trying to resolve their meaning, but it is a necessary means.

And let's not generally be too hard on lawyers: we're people too, cut us we bleed, and so on.

Itzik Basman

Iztik I don't mean to be too tough on lawyers - rule of law is the most important feature of a democracy, if your aim is opposition to tyranny (I prefer to rephrase the old saw with kill all the MBA's), but notionally I have a hard time with the express opinion that the legal profession is a virtual priesthood without whose intervention we mortals should have the decency to refrain comment on the fundamentals

Quoting bjkeefe: Therefore, I'd be interested in hearing some examples from you, who I understand to be a gun enthusiast, of what might constitute "reasonable laws" that seek to protect public safety.

It seems to me that reasonable laws would regulate firearms in a way similar to other powerful tools with one exception. That exception being that unless disqualified by specific history or behavior the regulations should not restrict the rights of law abiding, adults since the second amendment is an individual right. Types of firearms can be regulated by type but not prohibited. The abuses that appear when issuance of a license or permit became so restrictive and onerous that the right becomes unexercisable by the average citizen. For example the onerous registration requirements in New York City, Connecticut or Chicago or Boston. It also seems to me that regulations for permits and licenses as long as they are "shall issue" are reasonable in order to keep firearms out of the hands of the criminally mentally ill, violent felons and other legally disqualified individuals. I also think that age and training requirements are reasonable, again as long as they

Abu Noor, thanks for the extremely helpful clarification. I can't argue with what you said.

Richard: Thanks for that. Very helpful. Two follow-ups: First, you did not say whether you thought most people who are as enthusiastic about guns (and gun ownership rights) as you are would be as willing as to accept "reasonable" laws and restrictions such as these. Second, this is unclear to me:

Types of firearms can be regulated by type but not prohibited.

Do you mean that a law can be passed banning anyone from owning, say, a rocket launcher? Or do you mean that no such law can be passed; you can only have a law/set of regulations making it harder to own a rocket launcher than a shotgun? Oh, one more thing:

I am a great believer in education. Students should be trained in firearms safety just as they are taught (or should be taught) civics, American Government, safe sexual practices and birth control ...

Hey! I just found a place where I can support programs that teach abstinence only! ;^)

I'm for guns, but I think Rakove does just fine.

I think it's rational to believe that there can be "reasonable" restrictions on gun ownership in the same way that there can be "reasonable" restrictions on speech. Very few people believe that the First Amendment gives someone the right to yell "fire" in a crowded theater, or the right to spontaneously hold a demonstration in the middle of a busy intersection. Likewise, I can't imagine very many people honestly thinking the Second Amendment gives you the right to carry a rocket launcher to school.

OK I'm at 40 minutes and now I'm agreeing with EV. I thought from the start that JR was arguing a states rights view.

Quoting AemJeff: Iztik I don't mean to be too tough on lawyers - rule of law is the most important feature of a democracy, if your aim is opposition to tyranny (I prefer to rephrase the old saw with kill all the MBA's), but notionally I have a hard time with the express opinion that the legal profession is a virtual priesthood without whose intervention we mortals should have the decency to refrain comment on the fundamentals of this democracy. I think I overreacted to gwlaw99, I don't believe he meant me when he he said "this is what happens...," but still, you shouldn't need to be a lawyer to believe you have the ability to parse the Bill of Rights.

Just an FYI, I wasn't talking about you. I was talking about Rakove and his argument that: 1) congress can regulate militias away to nothing and 2)the second ammendment only applies to militias. As Volohk pointed out and Rakove then agreed to, this makes the 2nd ammendment meaningless. I agree with you that the saying "it's all there in the words" is not a good argument (but I am not sure anyone is making that argument). I also agree

One question does occur to me. Wouldn't an argument that a particular precedent or a current interpretation was inconsistent with the text arry some weight? I realize that this could open the door to a discussion of Orginalism, something I'd love to have an argument about, but not in this context.

What is or is not reasonable is legally determined by the level of scrutiny(overview) that courts are directed to apply to any particular issue. In this instance the court I believe has directed the "strict" level of scrutiny needs to be applied when considering restrictions.

AemJeff, I agree, a discussion on broader issues of constitutional interpretation would be fun, outside of this context. I really don't like this context because, the 2nd amendment is a little weird, and I don't know (or care) that much about the 2nd amendment. As to your direct question, think of it this way. In the area of free speech. Once a case has held that when the 1st amendment says Congress shall make no law...abridging the Freedom of Speech it does not mean that there cannot be restrictions on time, place, or manner. Another precedent has determined there is an exception for speech that creates a "clear and present danger." (the always beloved fire in a theater example). Do you think the Court would be more impressed if you tried to fit your argument as to why you should win the case into those precedents or if you said, I don't care about the precedents, the amendment text says Congress shall make no law and that means no law, overturn all the precedents!? So, the most part this is how the law evolves, through more and more detailed explanation of the text based on fitting

Quoting Abu Noor Al-Irlandee: AemJeff,

I agree, a discussion on broader issues of constitutional interpretation would be fun, outside of this context. I really don't like this context because, the 2nd amendment is a little weird, and I don't know (or care) that much about the 2nd amendment.

As to your direct question, think of it this way. In the area of free speech. Once a case has held that when the 1st amendment says Congress shall make no law...abridging the Freedom of Speech it does not mean that there cannot be restrictions on time, place, or manner. Another precedent has determined there is an exception for speech that creates a "clear and present danger." (the always beloved fire in a theater example). Do you think the Court would be more impressed if you tried to fit your argument as to why you should win the case into those precedents or if you said, I don't care about the precedents, the amendment text says Congress shall make no law and that means no law, overturn all the precedents!? So, the most part this is how the law evolves, through more and more detailed explanation of the text based on fitting

I'm not arguing against anybody. My discussion with AemJeff took off on a tangent not really about the Heller case. You can trace how that happened in the thread. It is somewhat related to some parts of the discussion between Mr. Rakove and Mr. Volokh (especially this notion (which I've previously labelled a red herring in my view) that somehow Mr. Rakove's not being a lawyer was the problem with his argument). Other than that, as I stated above, Heller and the 2nd amendment in general is of limited interest to me.

Quoting gwlaw99: I am curious who you are arguing against? Is someone arguing that the text is the only thing the court considered in Heller?

It is somewhat related to some parts of the discussion between Mr. Rakove and Mr. Volokh (especially this notion (which I've previously labelled a red herring in my view) that somehow Mr. Rakove's not being a lawyer was the problem with his argument).

Rakove wrote an amicus brief that was cited by both sides in the decision. He received a lot more respect from the justices of the SC than from the readers of BheadsTV, where he's been ridiculed as a peon non-lawyer who wouldn't know a writ of certiorari from a jar of mayonnaise.

Brendan: What I intended by the statement that regulation but not prohibition is in order is that I think it not unreasonable for the regulations on the ownership of heavier arms to be more demanding but not arbitrarily or intentionally onerous. Once a citizen has satisfied he law however the license or permit should be issued on a "shall issue" basis. You use the example of a "rocket launcher", under federal fire arms law as issued and enforced by the Federal Bureau of Alcohol, Tobacco and Firearms this would be listed under the heading of a "destructive device" and yes if you want to go through the red tape you can own one. I know of a fellow who owns an 12 pounder Neapolitan cannon of civil war vintage and another who own a Sherman tank complete with 75mm gun and .30 and .50 cal machine guns. The 75mm comes under the "destructive device" law and the other items are class III NFA arms. The 12 pounder is under state of Mass cannon permit. These are expensive collectors items but folks do collect them. None of this is my personal cup of

Mr. Rakove alluded to his book "Original Meanings" and the link is provided. I don't think it is mentioned, however, that he won the Pulitzer Prize for that book. It is highly recommended to anyone interested in a scholarly look at some of the real issues involved in the rote conservative appeal to "originalism." One can get a used copy cheap from Amazon. http://www.amazon.com/Original-Meani.../dp/0679781218

Quoting Abu Noor Al-Irlandee: Mr. Rakove alluded to his book "Original Meanings" and the link is provided. I don't think it is mentioned, however, that he won the Pulitzer Prize for that book. It is highly recommended to anyone interested in a scholarly look at some of the real issues involved in the rote conservative appeal to "originalism."

One can get a used copy cheap from Amazon.

http://www.amazon.com/Original-Meani.../dp/0679781218

The argument between the Court and the dissent was not between "originalist" conservatives and "living constitutuion" liberals. Both the Court and the dissent made originalist arguments. The debate was whether the right is an individual right or a collective right.

Abu: I agree with the comment to the effect that no one is saying the text is only thing and wondering who you're arguing against so hard on that point. That said, I think you are giving the text and the means of interpreting it short shrift. For instances, just at the level of statutory or constitutional construction, the phrases you cite—“freedoms of…” are convenient paraphrases for the exact wording of your Constitution’s text, embedded in longer clauses and sentences, contained within parts, with words and phrases repeating themselves in particular contexts and patterns, accumulating in the structure and patterns of the document as a whole. There is a lot of analysis and argument that proceeds from all that and you cannot mean “well we have freedom of speech now let’s leave the document behind and go on to other stuff that helps resolve the issue.” Surely Heller is a case in point of the most laborious and contending constructions of the language of the Second Amendment emanating in a materail respect from an analysis of the text of your Constitution as such. I respectfully think you

Quoting Richard from Amherst: What I intended by the statement that regulation but not prohibition is in order is that I think it not unreasonable for the regulations on the ownership of heavier arms to be more demanding but not arbitrarily or intentionally onerous. Once a citizen has satisfied he law however the license or permit should be issued on a "shall issue" basis.

Okay. Thanks for clarifying. I still think that at some point, a weapon is so potentially dangerous that it's reasonable to ban ownership of it, by a private citizen, outright. I don't care how responsible the person who wants to own it might be, it just seems like too much of a societal risk if that person were to slip through the regulatory net, or later go crazy, or get the weapon stolen, or something like that. But it's a philosophical difference mostly, and given sufficient regulations, the absolute numbers at risk are probably comparatively small, so I wouldn't go to the mat on this one.

I also have no problem of your "abstaining" but consider that children who have been trained in the safe handling of firearms ...

Argh. Did you not see the winkie? I was making

gwlaw99: Turley believes the second amendment supports and individual right: A liberal's lament: The NRA might be right after all.

gwlaw99, Who said it was? Mr. Rakove begins the whole diavlog by saying that he thought the opinions would be a good basis for a seminar between different brands of "orginalism." I guess you're picking up my comment about "conservatives rote use of originalism." Here, I was referring to political discussions in mass media, not ones among legal scholars, where the right wing blowhards use things like orginal intent and strict construction to be code words for "come down on the conservative policy side" without any real appreciation of legal methodology or what they are talking about at all.

Quoting gwlaw99: The argument between the Court and the dissent was not between "originalist" conservatives and "living constitutuion" liberals. Both the Court and the dissent made originalist arguments. The debate was whether the right is an individual right or a collective right.

American jurisprudence has been especially concerned about "political speech," which is protected above and beyond other forms of speech. Content-based restrictions on political views demand the strictest scrutiny from courts. In other words, if a school says "no t-shirts with text on them," it would certainly have a better case than to say "no t-shirts pro or con on guns." "Content-neutral" restrictions are a big deal, although you can, of course, argue that any ban at all on t-shirt texts chills students' 1st Amendment rights.

Quoting Abu Noor Al-Irlandee: gwlaw99,
I guess you're picking up my comment about "conservatives rote use of originalism." Here, I was referring to political discussions in mass media, not ones among legal scholars, where the right wing blowhards use things like orginal intent and strict construction to be code words for "come down on the conservative policy side" without any real appreciation of legal methodology or what they are talking about at all.

My mistake. I too am annoyed by such legalese. Maybe a little disclaimer would be warranted when you are talking about a related topic not exactly related to Heller.

Quoting samdraper: gwlaw99:

Turley believes the second amendment supports and individual right: A liberal's lament: The NRA might be right after all.

Good find! I guess he wouldn't be the correct person to debate Volohk.

Itzik Basman, Why is everything an argument with you guys. I was responding to specific requests for clarification of my own point from AemJeff. He seemed to think I was responding to his question, I have no idea what is bothering you guys so much. I really don't think these points are worth belaboring any further. Maybe we just are using different terminology. When I say "turns on the text" I mean the text dictates the decision. How can one say this is the case, when Mr. Volokh contends that even conservative legal scholars 30 years ago would have said that there is no individual right to own firearms? Did the text of the 2nd amendment change within those 30 years? How can something turn on the text and turn on other things? I think we differ on our understanding of the meaning of the expression "turn on" I have stated repeatedly that any framework one wants to put forth has to take account of the text. I have given repeated examples of why in most cases, especially those having to do with basic and fundamental rights like we're talking about here, the specific language of the text is

I did try to do that in this thread...obviously it didn't work. I know sometimes the conversations have a context of their own in the comments section which is sometimes assumed by the commenters but may confuse since we all don't necessarily read every comment but may pick up a certain point in isolation. Or maybe I'm just not that articulate.

Quoting gwlaw99: My mistake. I too am annoyed by such legalese. Maybe a little disclaimer would be warranted when you are talking about a related topic not exactly related to Heller.

Quoting bjkeefe: Argh. Did you not see the winkie? I was making a joke.

Yes I understood you were kidding and I was just saying that I understand your point and trying to indicate that I concur with you about the importance of education. It was not intended to be argumentative.

Quoting bjkeefe: Tell me, though. Should a student be allowed to wear a T-shirt that says, say, "Mustache Rides: $1?" What about one that says something negative about, say, Jesus? Or positive about Hitler?

If you say, no, those are offensive to others, and therefore different, what do you say to the kid who says, "Joey has a T-shirt with a Glock on it. My brother was killed by a Glock. Therefore, I find Joey's T-shirt offensive."?

Again I understand your point here and further understand that minor children in school do not have the civil rights of adult citizens. However some of the expulsions and lockdowns initiated over images, drawings and tee-shirts are a bit over the top. My answer to the the student saying that "Joey has a T-shirt with a Glock on it. My brother was killed by a Glock. Therefore, I find Joey's T-shirt offensive." would be something to the effect an uncle of mine was killed by

If I'm characterizing it fairly, (he's ridiculing Rakove's position in this dingalink, but it gives a fair window on his point of view, I think) seems to be: The conditional clause in the Second Amendment could be manipulated by legislation such that the right is rendered meaningless. Therefore the conditional doesn't apply. I'm open to the argument that the Second Amendment confers an individual right, but this reasoning doesn't get there, in my opinion.

Quoting gwlaw99: This is the problem when you have non-lawyers talking about the law.

Yeah. Exactly. This is the most important and appropriate statement made anywhere in this thread. (Not to disparage many of the excellent comments made by others, including Wonderment and Eastwest.) I realize you were directing your remark at Dr. Rakove (who is, let's face it, more qualified than any of us to opine on the Constitution). But really, it's forum dwellers and amateur attorneys who should take your point to heart. Few people, left or right, decide what they believe based on the text of the Constitution or a careful study of legal precedent. Most people, pro-gun or anti-gun, don't read the Constitution and then decide what they believe; they do the opposite. Non-lawyers need to stop pretending they are qualified to play lawyer by regurgitating whatever they find on Balkinization or the Volokh Conspiracy. There's no shame in a principled moral or intellectual defense of your beliefs regardless of what is written (or believed to be written) in the Constitution. And if believing the Constitution says what you want it to say is so important, both sides can find plenty of

Quoting samdraper: Turley believes the second amendment supports and individual right: A liberal's lament: The NRA might be right after all.

Thanks for posting this, I missed it when it first came out. The most striking thing about it is how openly and honestly Turley admits his past disingenuousness regarding the 2nd amendment. "Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda." "By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech." "Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. "More important, the mere reference to a purpose of the Second Amendment does not alter the fact that

If the first clause is conditional, is the argument that we no longer live in a free state and therefore we no longer have a right to have arms?

Quoting TwinSwords:
What's important is what your values are.

I'm sure you don't realize it, but you are arguing that the only rights we need uphold are those agreed to by the majority based on their agreed-upon values, constitution be damned. In the future this may apply not only to the right to bear arms, but also the right to travel freely. If it's deemed immoral to travel because of carbon usage, will it be constitutional to prohibit people from leaving their hometowns? And what of the values of Washington DC, where repeat offenders are often not even given prison time. Does this mean that the ruling authority values criminals over victims? Are these values important?

Quoting TwinSwords: When the inevitable despair sets in, remember what a great man hated by conservatives everywhere once said:......

Once again I'm sure you don't realize it but you negate your entire post with this hatefully dishonest generalization.

Quoting harkin: If it's deemed immoral to travel because of carbon usage, will it be constitutional to prohibit people from leaving their hometowns?

Why deal in hypotheticals? I've never heard anybody serious suggest what you're proposing. What if Homeland Security makes it even more difficult to travel than it already has? At least my scenario has a basis in fact.

And lastly, I find Rakove's Op-Ed next to worthless because he's practicing the same 'selective history' for which he condemns Scalia. "No freeman shall ever be debarred the use of arms."
Thomas Jefferson: Draft Virginia Constitution, 1776. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Benjamin Franklin, Historical Review of Pennsylvania, 1759 "[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
James Madison - Federalist Paper #46 "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. ........we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone...Did you ever read of any revolution in a nation...inflicted by those who had no power at all?"
Patrick Henry - Virginia Ratifying Convention "[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it

Quoting AemJeff: Why deal in hypotheticals? I've never heard anybody serious suggest what you're proposing. What if Homeland Security makes it even more difficult to travel than it already has?

At least my scenario has a basis in fact.

Using your own weak argument against you, it was once a hypothetical to allow women to vote. It was also once a hypothetical to consider some black people other than property. Values can not only change for the good. People do not always even agree on what 'good' is. I hope this helps illustrate my point.

I've commented quite a bit in this thread about generalities. I've listened to the diavlog and I've read the opinion. What follows is a little more specific and based on my understanding of the two. I post without the expectation that anybody is going to find my opinions particularly insightful, but because the topic has been fascinating to me. There's plenty to argue over in Scalia's opinion. I'm not unwilling to grant the idea of a personal right. Though as I said in reference to Volokh, at least some of the arguments in favor of that view are questionable, and I strongly believe that the question of the conditional clause in the amendment is being treated with less gravity than it deserves. Having said that, the real problem with the decision is the, in my view, completely arbitrary decision to disallow a ban on concealable weapons. Scalia:

The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.

It is no answer to

The 12 pounders were referred to as Napoleons rather than Neopolitans, being essentially the same as the heavy smoothbore field cannon favored by the emperor. Regarding speech and T-shirts, see the recent "Bong hits for Jesus" case, in which the court held that a student not on school property and during a time when the school had been dismissed could still be punished by the school for his text (it may have been a sign rather than a shirt), if I recall all the specifics correctly. I gather that the speech discussion is taking the form of what various posters think should hold, rather than what the law/government/powers-that-be hold.

Quoting cragger: The 12 pounders were referred to as Napoleons rather than Neopolitans, being essentially the same as the heavy smoothbore field cannon favored by the emperor..

Hoist on my spellcheck again! ;^) Ah well i like neopolitans too! :^)

Quoting cragger: Regarding speech and T-shirts, see the recent "Bong hits for Jesus" case, in which the court held that a student not on school property and during a time when the school had been dismissed could still be punished by the school for his text (it may have been a sign rather than a shirt), if I recall all the specifics correctly. I gather that the speech discussion is taking the form of what various posters think should hold, rather than what the law/government/powers-that-be hold.

Yes I though I tipped my hat to the "bong hits for Jesus" decision (benighted though I thought it was) in my comments. I hated High school because I hated the legitimized despotism of the system (even though I was one of the elite nerds who upped the test scores and was therefore largely exempt). In my high school in 1967 the college bound were safe and the rest were Viet Nam bound. The unfairness was

Quoting harkin: I'm sure you don't realize it, but you are arguing that the only rights we need uphold are those agreed to by the majority based on their agreed-upon values, constitution be damned.

I'm not sure what you mean. Can you cite something I said that fits this description? Far from "constitution be damned," my point was that we have to meet the Constitution where it is. We should stop insisting that it means what we want it to mean. If it says blacks are property and not human, we have to face that brutal reality, and then get busy changing the Constitution so it reflects our values. How is this done? By the amendment process defined within the Constitution itself. (See, 13th Amendment.)

Quoting harkin: In the future this may apply not only to the right to bear arms, but also the right to travel freely. If it's deemed immoral to travel because of carbon usage, will it be constitutional to prohibit people from leaving their hometowns?

We don't currently have anything in the Constitution that prohibits stuff that's "immoral." If it did, we would never have had Jim Crow or slavery. As to your

Quoting cragger: I gather that the speech discussion is taking the form of what various posters think should hold, rather than what the law/government/powers-that-be hold.

That's the crucial point in a nutshell. The Constitution is not going to always magically mean what we want it to mean, and yet this is what both sides in the debate constantly demand.

Quoting Richard from Amherst: What I find most tragic to this day is that Johnson lacked the courage to either get the hell out or do what was necessary to win.

What do you believe would have been necessary to win?

Quoting TwinSwords: That's the crucial point in a nutshell. The Constitution is not going to always magically mean what we want it to mean, and yet this is what both sides in the debate constantly demand.

Actually, I'd flip this around. Language is plastic and and meaning is subjective. The danger is that is that one side or another will actually succeed in making it magically mean what they want it to mean, what they sincerely believe it ought to mean. In fact, I would consider even the outcome of my side getting everything it wants to be a disaster. We're all here here to keep the other guys honest. And, to me, that's the value of public debates like this one.

Quoting AemJeff: Tossing out civic legislation on the basis of its having drawn a distinction at handguns is a partisan exercise, not a constitutional one.

Nicely put. It seems to me that this whole game of Constitutional interpretation is purely political. Conservatives decided four decades ago that one of their top priorities was the elevation of judges who told them what they wanted to hear about the 2nd Amendment. Heller is the outcome of this forty year effort to make the Constitution mean what the NRA wanted it to mean. I think in the broad outlines, most of us would agree there is some kind of individual right contained in the 2nd Amendment. But the details of the opinion as you've cited (e.g., concealable weapons) sound more like the practice of politics than law.

Quoting TwinSwords: What do you believe would have been necessary to win?

Twin swords: 41 years after the fact I don't honestly know what it would have taken to win. LBJ sure in hell did not do it what ever it was. I do know that from the prospective of a member of the high school class of 1967-8 at the time, the Johnson administration was not doing it and our classmates who were in the front lines knew it and were vocal about it to their classmates. I visit my classmates names on the black granite in DC and think about it. I do know that it is the verdict of history that the US won the Tet offensive
and lost the media war. I don't think that we should make the same mistake in Iraq or Afghanistan and I don't think that we should let the US political left make the decision this time. I know you may not like my answer and frankly I don't care.

Quoting TwinSwords: Conservatives decided four decades ago that one of their top priorities was the elevation of judges who told them what they wanted to hear about the 2nd Amendment. Heller is the outcome of this forty year effort to make the Constitution mean what the NRA wanted it to mean.

The name Racove rang a bell and with a bit of googling I realized he was an historian who was taken in entirely by the fraud Davis Bellesiles, even helping (unknowingly I'm sure and yet carelessly) perpetuate his disinformation campaign against the 2nd amendment by granting him a larger arena for selling his lies. If I remember correctly he later apologized but also tried to minimize the effect this work of fraud had in influencing US courts. I found a very good read from this unfortunate episode where an 'historian' pushed his 'prize-winning book' which actually employed fraud to further a cause for people in a years-long 'effort to make the Constitution mean what the fill in blank wanted it to mean'. Don Williams - Six Racove Oversights

Quoting Richard from Amherst: Twin swords:

41 years after the fact I don't honestly know what it would have taken to win. LBJ sure in hell did not do it what ever it was.

I do know that from the prospective of a member of the high school class of 1967-8 at the time, the Johnson administration was not doing it and our classmates who were in the front lines knew it and were vocal about it to their classmates. I visit my classmates names on the black granite in DC and think about it.

I do know that it is the verdict of history that the US won the Tet offensive
and lost the media war.

I don't think that we should make the same mistake in Iraq or Afghanistan and I don't think that we should let the US political left make the decision this time.

I know you may not like my answer and frankly I don't care.

Thanks for the answer. My understanding is that Johnson massively escalated the conflict. What were troop levels in '64 vs '68? How many tons of bombs did we drop? How many Vietnamese did we kill? When I hear people wish we had "done

Quoting harkin: The name Racove rang a bell and with a bit of googling I realized he was an historian who was taken in entirely by the fraud Davis Bellesiles, even helping (unknowingly I'm sure and yet carelessly) perpetuate his disinformation campaign against the 2nd amendment by granting him a larger arena for selling his lies. If I remember correctly he later apologized but also tried to minimize the effect this work of fraud had in influencing US courts.

I found a very good read from this unfortunate episode where an 'historian' pushed his 'prize-winning book' which actually employed fraud to further a cause for people in a years-long 'effort to make the Constitution mean what the fill in blank wanted it to mean'.

Don Williams - Six Racove Oversights

Interesting. Was "Bellesiles" the name that came up in the diavlog? I watched it yesterday so I can't recall the name, but there was someone mentioned by Volokh and Rakove whose name I could quite make out.

Quoting AemJeff: Actually, I'd flip this around. Language is plastic and and meaning is subjective. The danger is that is that one side or another will actually succeed in making it magically mean what they want it to mean, what they sincerely believe it ought to mean.

In fact, I would consider even the outcome of my side getting everything it wants to be a disaster. We're all here here to keep the other guys honest. And, to me, that's the value of public debates like this one.

Yeah, I would agree. That's how this whole thing really works. The whole academic and scholarly veneer is, as you said in your Scalia thread, much more of a partisan (political) exercise than a scholarly one. I mean, the Justices are scholars, no question about it, but quite often in the service of an ideology. Conventional wisdom/official dogma holds that ideology flows from the interpretation. But the way it looks to me is that interpretation is chosen and crafted to support the ideology. Even Al Capone had a legal theory to justify what he did.

And no one pours new wine into old wineskins. If he does, the new wine will burst the skins, the wine will run out and the wineskins will be ruined. No, new wine must be poured into new wineskins. And no one after drinking old wine wants the new, for he says, 'The old is better.'

Luke 5:37-39 (New International Version)

There's one other assumption most of us are making about the US Constitution-that it is infallibly elastic. Most of us assume this debate is taking place because the US Constitution magically accommodates any and all arguments, for all ages. Bruce Ackerman's The Failure of the Founding Fathers highlights the errors those present at the Convention made with the electoral college, and how those mistakes led to the crisis of 1800-01 (almost an insurrection of 1800) when Jefferson as Senate president presided over the counting of votes in an election in which he was a candidate. The Second Amendment might similarly be an error, outdated, or a compromise that continues to fester through the generations. Instead of infinite elasticity, new men might be trying to pour new wine into old skins by dressing up

As I said earlier in this thread, the question of when/how you can permissibly restrict guns under the Second Amendment seems a lot more approachable if you consider how the Court has assessed free speech restrictions in light of the First Amendment. In both cases, I think, you can do impose limited restrictions on the time, place, and manner in which the protected right is exercised, but the restriction cannot be so severe as to seriously inhibit people's ability to exercise their constitutional rights. For example, a restriction on people's ability to engage in a demonstration inside a government office building probably would be okay, but a restriction barring people from holding a demonstration in a public place where people commonly assemble would raise serious constitutional questions. I think Scalia is making the case that since handguns are the gun of choice for so many people, a restriction on their ownership/use will have a more significant impact on people's ability to exercise their Second Amendment rights than, for example, a restriction on the ownership of a rocket launcher. As a result, such a restriction must be more limited in scope and effect.

Quoting Thus Spoke Elvis: I think Scalia is making the case that since handguns are the gun of choice for so many people, a restriction on their ownership/use will have a more significant impact on people's ability to exercise their Second Amendment rights than, for example, a restriction on the ownership of a rocket launcher. As a result, such a restriction must be more limited in scope and effect.

Not to mention the fact that the restriction was for guns in the home, not on the street.

Professor Volokh has pointed out serious flaws in Professor Rakove's understanding of the Second Amendment simply by emphasizing the actual text. That the Second Amendment's history cannot be found in the Heller decision is largely a tribute to historian Jack Rakove himself. Rakove's Heller amicus brief was relied on by the dissenting justices, who adopted the professor's view that the Second Amendment is not a typical Bill of Rights provision like the other provisions of the first eight amendments. All eight were developed directly from typical state declaration of rights provisions of the time. The Rakove brief de-emphasized this actual close relationship between the Second Amendment and the extant state declarations of rights. It explained away the latter as not part of the state constitutions (an error), not understood as legally binding (another error), and readily comparable to the English Bill of Rights (an "inapplicable" comparison according to James Madison). After trashing the actual predecessors of the Second Amendment, Rakove went on in his Heller amicus to erroneously ascribe the development of a later rejected Article I, Section 8 militia powers amendment as

If you think Professor Rakove is correct, read: http://hnn.us/articles/47238.html

Rakove got owned. or pwnt, if you prefer.

Since writing the comments above about Professor Rakove's Heller brief, I have made an extensive analysis of the historians' brief argument that is ongoing at my blog, On Second Opinion. For those who would like to check for themselves the accuracy of the argument presented by Professor Rakove in the historians' Heller amicus brief, I recently posted a self-check Challenge to Supporters of the Heller Dissent. If Professor Rakove and the fourteen professional historians who signed on to his brief are entirely wrong about such simple and easily verified points, it is likely they are wrong about a great many other points as well. My series Root Causes of Never-ending Second Amendment Dispute demonstrates and documents that is exactly the case with the Rakove historians' Heller amicus brief.

This is interesting. Fourteen professional historians failed to consult a basic resource secondary text written in 1909 about early state constitutions and signed on to a false statement about the incorporation of bills of rights into those early constitutions. Seems unlikely, but I guess it's possible, a phenomenon to be explained by liberal ideology. But perhaps there is something seriously wrong with Thorpe's 1909 work, or perhaps Young is wrong about whatThorpe says?