“The people of the state of New York have every right to interpret the Second Amendment—as much right as Justice Clarence Thomas does.”
Does this apply to any other amendment contained in the Bill of Rights? Do we acknowledge that the people of different states can interpret for themselves, say, the scope of First Amendment protection for obscenity or “hate speech” or the Sixth Amendment’s right to a jury trial in the most heinous of accusations? Because I don’t think anyone across the political spectrum does.
The philosophical point at issue is the one Lincoln mooted with respect to Dred Scott: does the Supreme Court decide what the words of the constitution mean, or does it decide cases? I think it decides cases. I'm not arguing that New York State should refuse to obey the Court because it doesn't like the decision. I'm arguing that the Court has an exaggerated understanding of its role in our constitutional design, and should not have decided the case as it did.
More generally, I think it's a mistake to put our faith in the Court as the primary guardian of individual rights. The primary guardian is the people themselves. And I do think there are plenty of liberal-minded individuals who agree with that assessment--Larry Kramer's book, The People Themselves, had a big influence on me, and Jamelle Bouie at The New York Times is a contemporary columnist who has repeatedly argued that what ultimately safeguards rights is not a strong and activist Court but a strong democracy and an activist citizenry.
That doesn't mean the Court has nothing to do. They still have the job of making sure the laws are applied fairly, of adjudicating between the branches and levels of government, and more generally of keeping our democratic and republican form of government from being corrupted. I don't agree with all of his conclusions but I quite like John Hart Ely's framework for thinking about what the Court does inasmuch as he focuses on the purpose of individual rights as mechanisms for keeping democracy working rather than as inviolable abstractions that exist for their own sake.
Yes, because the 4th Amendment says that "The right of the people to be secure in their persons" which implies that we're talking about a right that belongs to the entire people, but as individuals.
The more interesting question would be "the right of the people peaceably to assemble" as described in the 1st Amendment. If that's a collective right, then it might plausibly have been limited in its original understanding to purely political matters, and not apply to social or economic ones that aren't actions of "the people" but just of a bunch of guys.
All of that having been said, as I thought I made clear in the post, I'm not an originalist. I'm fine with saying that our understanding of the constitution evolves over time. In particular I'm fine with the argument that the 14th Amendment ought to transform our understanding of the Bill of Rights (including by their incorporation against the states).
I just object to the claim that Thomas's reading of the 2nd Amendment in this case (and Scalia's in Heller) is properly originalist. And I object to the high-handed assumption that the Court is the only or best proper arbiter of what the constitution's text means, that the text doesn't, in fact, belong to all of us as Americans.
I will use this combox to bang on the drum for my paraphrase of the Second Amendment (as I do in all such discussions): "Because an effective, civilian controlled military is necessary for a free state, the right of the people to join and serve in the military shall not be infringed." I think that the liberal side of gun rights debated is doomed until liberals consistently explains to the public that "bear arms" means "serve in a military" and not "carry a gun" to the point that it's a well known talking point. Right now the "common sense" interpretation is on the right wing's side, historical meaning of the amendment be damned. The aggravating thing is that the 2nd amendment was infringed as recently as Trump's trans ban, but at the time no one framed it that way. It actually is a very liberal amendment.
I think it's plausible to read the 2nd Amendment as meaning (in part) that nobody should be prohibited from joining the militia, but I think it's a mistake to conflate "the militia" with "the military" particularly now that we have a professional standing army. "The militia" was supposed to be the citizenry at large that could be mustered to fight in a time of crisis.
The military vs militia distinction doesn't really exist in contemporary politics. The closest thing we have is the distinction between civilian control of the military vs. military rule. I think it gets at why the Founders were against "standing armies" and pro "militia" if we say in the contemporary idiom that the military must have civilian control.
If "the people" does not give a right to individuals, then does that mean the first amendment doesn't give a right to an individual to protest, but only to classes of people that the government thinks worthy of assembly?
I do think it's interesting to contemplate what the original meaning of "the right of the people peaceably to assemble" meant. I don't think it's crazy to interpret it as limited to *political* assembly, as opposed to assembly for some economic or social purpose that wouldn't constitute an action of "the people." I don't think it's reasonable, though, to imagine that the framers intended the right to be limited to only *classes* of people deemed worthy of assembly -- "the people" really is supposed to be "the people."
All of that having been said: I'm not an originalist, so I don't think the Court needs to wear that straitjacket. I believe in a relatively deferential and modest Court, not one that speaks ex cathedra about the true and eternal meaning of the constitutional text.
“The people of the state of New York have every right to interpret the Second Amendment—as much right as Justice Clarence Thomas does.”
Does this apply to any other amendment contained in the Bill of Rights? Do we acknowledge that the people of different states can interpret for themselves, say, the scope of First Amendment protection for obscenity or “hate speech” or the Sixth Amendment’s right to a jury trial in the most heinous of accusations? Because I don’t think anyone across the political spectrum does.
The philosophical point at issue is the one Lincoln mooted with respect to Dred Scott: does the Supreme Court decide what the words of the constitution mean, or does it decide cases? I think it decides cases. I'm not arguing that New York State should refuse to obey the Court because it doesn't like the decision. I'm arguing that the Court has an exaggerated understanding of its role in our constitutional design, and should not have decided the case as it did.
More generally, I think it's a mistake to put our faith in the Court as the primary guardian of individual rights. The primary guardian is the people themselves. And I do think there are plenty of liberal-minded individuals who agree with that assessment--Larry Kramer's book, The People Themselves, had a big influence on me, and Jamelle Bouie at The New York Times is a contemporary columnist who has repeatedly argued that what ultimately safeguards rights is not a strong and activist Court but a strong democracy and an activist citizenry.
That doesn't mean the Court has nothing to do. They still have the job of making sure the laws are applied fairly, of adjudicating between the branches and levels of government, and more generally of keeping our democratic and republican form of government from being corrupted. I don't agree with all of his conclusions but I quite like John Hart Ely's framework for thinking about what the Court does inasmuch as he focuses on the purpose of individual rights as mechanisms for keeping democracy working rather than as inviolable abstractions that exist for their own sake.
Anyway -- I hope that clarifies.
Does the 4th Amendment secure an individual right against unreasonable searches and seizures?
Yes, because the 4th Amendment says that "The right of the people to be secure in their persons" which implies that we're talking about a right that belongs to the entire people, but as individuals.
The more interesting question would be "the right of the people peaceably to assemble" as described in the 1st Amendment. If that's a collective right, then it might plausibly have been limited in its original understanding to purely political matters, and not apply to social or economic ones that aren't actions of "the people" but just of a bunch of guys.
All of that having been said, as I thought I made clear in the post, I'm not an originalist. I'm fine with saying that our understanding of the constitution evolves over time. In particular I'm fine with the argument that the 14th Amendment ought to transform our understanding of the Bill of Rights (including by their incorporation against the states).
I just object to the claim that Thomas's reading of the 2nd Amendment in this case (and Scalia's in Heller) is properly originalist. And I object to the high-handed assumption that the Court is the only or best proper arbiter of what the constitution's text means, that the text doesn't, in fact, belong to all of us as Americans.
I will use this combox to bang on the drum for my paraphrase of the Second Amendment (as I do in all such discussions): "Because an effective, civilian controlled military is necessary for a free state, the right of the people to join and serve in the military shall not be infringed." I think that the liberal side of gun rights debated is doomed until liberals consistently explains to the public that "bear arms" means "serve in a military" and not "carry a gun" to the point that it's a well known talking point. Right now the "common sense" interpretation is on the right wing's side, historical meaning of the amendment be damned. The aggravating thing is that the 2nd amendment was infringed as recently as Trump's trans ban, but at the time no one framed it that way. It actually is a very liberal amendment.
I think it's plausible to read the 2nd Amendment as meaning (in part) that nobody should be prohibited from joining the militia, but I think it's a mistake to conflate "the militia" with "the military" particularly now that we have a professional standing army. "The militia" was supposed to be the citizenry at large that could be mustered to fight in a time of crisis.
The military vs militia distinction doesn't really exist in contemporary politics. The closest thing we have is the distinction between civilian control of the military vs. military rule. I think it gets at why the Founders were against "standing armies" and pro "militia" if we say in the contemporary idiom that the military must have civilian control.
If "the people" does not give a right to individuals, then does that mean the first amendment doesn't give a right to an individual to protest, but only to classes of people that the government thinks worthy of assembly?
I do think it's interesting to contemplate what the original meaning of "the right of the people peaceably to assemble" meant. I don't think it's crazy to interpret it as limited to *political* assembly, as opposed to assembly for some economic or social purpose that wouldn't constitute an action of "the people." I don't think it's reasonable, though, to imagine that the framers intended the right to be limited to only *classes* of people deemed worthy of assembly -- "the people" really is supposed to be "the people."
All of that having been said: I'm not an originalist, so I don't think the Court needs to wear that straitjacket. I believe in a relatively deferential and modest Court, not one that speaks ex cathedra about the true and eternal meaning of the constitutional text.