Rights and the 2nd Amendment

In an old blog post I argued that the Second Amendment created three constitutional rights. “One is a right to participate in the military, in Latin jus militiae, from its origin in Roman law. The second is a right to possess weapons for the purpose of the participation in the militia, [now the National Guard] guaranteed by the first right. The third is a broader right to possess weapons unrelated to matters military.” The Second Amendment: Not One or Two but Three Rights  I was mistaken.

The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles

As everyone knows the Second Amendment is not about guns. The objects of the right it constitutionalizes are “Arms.” Swords, bayonets, and hatchets, as well as muskets, were the arms of the Revolutionary War. Current arms of individual use include body armor, hand grenades and shoulder rockets.

The fact that shoulder rockets are a tad dangerous and of little socially approved private use surely has some bearing on their constitutional status. A frank recognition of this fact will show the supporter of the open carry of large clip semi-automatics that his mode of constitutional interpretation is not so different from those who contend that the carry of said semiautomatic, and perhaps also of a Saturday night special, is outside constitutional protection.

The Law Professors' Brief in King v. Burwell

In the challenge to the Affordable Care Act now under consideration by the Supreme Court, an  amicus curiae brief was filed by law professors William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim and David Strauss. The brief sets out an account of textualism in statutory construction, contrasting it with “purposivism” – which takes the intentions of legislators to be the touchstone of interpretation. The brief then applies textualist methods in arguing that the government's (the IRS's) interpretation of the disputed language in the ACA should be upheld.

I think that the brief is largely correct about the political theory underlying textualism, the interpretive tenets of textualism, and the application of those tenets to the ACA. I want to examine a few objections from the side of theory.

Are Federal Bench Trials in Criminal Cases Constitutional?

Bench trials (trial to a judge with no jury) constitute about half of all criminal trials in the federal courts and in the neighborhood of 15% of the felony trials. Yet they are in flat contradiction to the express language of the Constitution.

Deceptive Truth: Kant, Sandel, & Bill Clinton

Occasioned by the suggestion of Sandel that it may sometimes be morally permissible to deceive people, so long as you do so without lying, I here examine such alleged truths as “I did not have sexual relations with that woman.” After setting up the issues in Section 1, in Sections 2-4 I examine questions of language, communication, and truthfulness in assessing whether candidate deceptive truths really are true. These sections require little if any prior familiarity in the area. The fifth section, however, probably will be hard to follow unless you have some acquaintance with Kant’s ethics. Lacking that, you still may well be able to follow the Sections 6-8, and the final section on the Clinton impeachment has no prerequisites.

A Textualist Approach to Legal Interpretation

Here is a draft of a paper on legal interpretation that is similar to origanilism in emphasizing the meaning of the text as enacted, but differs from standard forms of originalism, especially with respect to normative words and phrases in the text and in disavowing as determinative drafter and legislative or ratifier expectation and intent. The first section by itself might be of interest if you are a little uncertain about the difference between ambiguity and vagueness, or types of ambiguity, or what problems of interpretation there are beyond ambiguity and vagueness.