Posted by: bridget | 12 June 2007

Patents and the Second Amendment

One of the pachyderm’s friends theorised that the Second Amendment does not cover any arms more lethal those those that existed at the time of the American Revolution (an idea which is shared by many scholars). One could argue that, as the explicit purpose of the Second Amendment is to ensure that the states can have a militia, AK-47s are protected: a militia could hardly be “well-regulated” or effectual if its arms are scarcely more lethal than a butter knife. Whether the enemy be the federal government, a tyrannical state, or a foreign invader, the people require arms to repel the tyrants or invaders; muskets aren’t going to cut it in 2007. The Second Amendment could be read to protect “arms” as existed at the end of the 18th century, or “arms” as those necessary to keep a well-regulated militia.

All of this assumes that the Founding Fathers did not anticipate the AK-47. Yet, these are men who experienced a growth of military technology during their lifetimes and had the foresight to provide for patent protection in the Constitution. Did they assume that the “useful arts” would push technology forward in every area save firearms? These were not Hellenics, awed by the newfangled Hoplite armour that came out two hundred years ago; these are men who saw the need to protect technological innovation and saw advancing military technology. At the beginning of the 18th century, Puckle developed a multi-shot revolving gun and percussion-cap guns and repeating firearms were developed at the beginning of the 19th century. The Founders were aware that gun technology had been progressing throughout the several hundred years prior. It would be really surprising if they did not believe that gun technology would improve, and do so in substantial ways: yet they, and the populace, drafted and ratified the Second Amendment.  Are we to assume that the Founders did not mean the Second Amendment to be a document for all time?

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Responses

  1. Exactly!

  2. Interesting points. I never thought about that linkage. The FF had quite a bit of foresight, so that makes sense.

    For a truly balanced look at gun control, I recommend The Simpsons episode where Homer gets a gun.

  3. I love how liberals are all of a sudden concerned with originalism when it comes to the Second Amendment. What about penumbras and the Constitution as a living, breathing document? I’m sure the Founding Fathers didn’t envision strippers and “artists” throwing feces at icons of the Virgin Mary when they wrote the 1st Amendment, but free speech now covers those things nevertheless.

  4. Lewd – dahlin, I should just let you blog for me. ;) (Speaking of which, you have a copyrights thing…??)

    You are right – why is it that the Amendment used to protect political speech is being used to give government funding to people who pee on religious symbols, but the Second Amendment is being read to require that citizens arm themselves with muskets against invading armies with Uzis? or a federal government, bent on tyranny, armed with nuclear weapons?

  5. theo………Well it would take some Liberal interperters of the Constitution to suggest that when it says right to bear arms IT REALLY MEANT ONLY THE TYPE AVAILABLE AT THE TIME. This doesn’t have much to do with originalism, it is again the epitome of re-interpertation. You are correct in saying that everything about History that the founders even knew about argues strongly that we hadn’t reached the final levels of weapon development. Why would it be just about the 2 amendment. I think they knew there could be development in a lot of areas the Constitution addresses and that is why they included ARTICLE V.

  6. This might seem extreme.I think the Founding Fathers foresaw that the people would need the right to have weapons. Out of the violence that created our country and preserved it I think it was clear future issues might arise. Ironically the creators of our governance foresaw that the government may one day need to be kept at bay.

  7. Excellent point, Steve. Why foist an undesirable interpretation on the Second Amendment when we could, legislatively, deal with advancing technology in a sensible manner?

    I do not think an Amendment will ever pass, though: you need 35 states to vote for it, and there’s no way that VA, NC, SC, GA, FL, AL, MI, LA, TX, AR, AK, MT, ME, TN, WV, KY, ID, ND, SD, WY, and the like will ever go for it.

  8. Very well thought out. I love it. Lewd and stevereenie, also great points. Stop it you guys, your making me think too much. Didn’t you get the memo that’s dangerous?

  9. Things would be a lot different if the founding fathers had been limited to bows and arrows, while the British soldiers had guns.

  10. lewdandlascivious hit the nail on the head. The same folks who argue that the Second Amendment only protects weapons the framers could conceive are usually the same folks who argue that the Eighth Amendment prohibits punishments the framers couldn’t have conceived. There are, of course, material distinctions, but on an instinctive level, it tends to reveal the results-oriented nature of the person.

  11. Jim – whoops! I gave the memo to my friend for her birdcage. Is that bad? O:)

    SST –

    LOL! You are correct as well. Why don’t you and Lewd just blog this for me?

    We can see that a militia made up of people holding muskets will be no match for an invading army (either our own sovereign or another) wielding AK-47s. The Founders did not intend such a result. In many ways, the “well-regulated militia” clause serves to expand the Second Amendment.

    Simon,

    Thank you for reading again! :)

    Yes, there are some people who hate originalism, except when they don’t. We see those positions frequently with any variety of constitutional or political interpretation – intellectually dishonest ones that only serve to undermine the protections of the Bill of Rights.

    I often like to fight people on their own territory and on their own terms – because the win is so much sweeter. (That is why I spend a lot of time arguing the pro-life side from a libertarian, atheist viewpoint.) The point that I tried to make is that originalism does not necessarily bring about the “desired” result of limiting “arms” to muskets and rifles.

    Lewd will recall when Justice Scalia said, in response to a question about whether or not the Second Amendment gave people the right to own tanks and nuclear weapons, that you cannot bear a tank.

    I am confused by this: “…are usually the same folks who argue that the Eighth Amendment prohibits punishments the framers couldn’t have conceived.”

    Aren’t our methods of execution significantly more humane than those during the late 18th century? I believe that they had firing squads and hanging; if I’m not mistaken, it takes about five minutes to die from hanging if the neck does not snap properly. With a firing squad, the big question is where you get hit – if you haemorrhage to death, die of septic issues, or take a direct hit to the head. Lethal injection seems so much kinder than all of those (well, by my standards: I put my dog to sleep but would rather gouge out my own eyeballs before putting her in front of a firing squad or snapping her neck)… colour me confused.

    I could understand if the protection of the Eighth Amendment were written differently, such as the right to only be executed according to certain methods and for certain crimes, but it does not make sense, in terms of originalism, to prohibit lethal injection because the Framers couldn’t conceive of it. That’s not the issue – it’s whether it would have been “cruel and unusual” in 1790. Right?

  12. Although many of the founders were agrarians, and thought that agriculture was the pinnacle of civilized development, and clearly assumed that trade and manufacturing would continue as subserviant elements of our economy.

    That said, if your goal is to over-throw a tyrannical government, everyone should be allowed to have cluster bombs in oder to make that realistic. If it is just for hunting…as a hunter since the age of 12, you should only need one bullet at a time, and if you can’t kill a deer with a bolt-action rifle you have no business in the woods.

  13. Yes, there are some people who hate originalism, except when they don’t. We see those positions frequently with any variety of constitutional or political interpretation – intellectually dishonest ones that only serve to undermine the protections of the Bill of Rights.

    It becomes even more problematic when those people are judges. Justices Stevens, Souter and Breyer have all written opinions whose principal argument is an appeal to text and original meaning; indeed, in some cases (Alden v. Maine for example) the argument has been precisely over what the original meaning is, with all Justices implicitly conceding that whatever it is, it governs. But it’s hard to see why – or at least, it’s hard to see why if one rules out naked instrumentalism – if a provision has a discernable original meaning, that analysis would be dispositive in one case and not in the other. It seems to me that, ceteris paribus, the original meaning either always wins or never matters. Once you’ve decided case “A” based on the original meaning, it’s tough to turn around and decide case “B” over a Scalia dissent warning that applying the exact same reasoning you used in case “A” produces a different result in case “B.”

    It’s similar to the way international law is used and not used – transnationalists generally and Justices Breyer and Ginsburg in particular have championed international law in some contexts (e.g. the death penalty), but when it comes to the exclusionary rule (see Hudson v. Michigan 126 S. Ct. 2159 (2006) (Breyer, J., dissenting)), for example, or abortion (see Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (Ginsburg, J., dissenting)), we see not a whisper from the fairweather transnationalists about foreign law. It isn’t hard to figure out why: because application of foreign law to those cases would cut against the desired result.

    And as you say, departure from the original meaning doesn’t always serve to expand rights. The problem with an evolving constitution is that once you unmoor it from fixed meaning, you can’t guarantee that it will evolve, only that it will change. Sometimes for better, but sometimes for worse: e.g. Maryland v. Craig, or the positions taken by the dissenters in Kyllo or Apprendi and its progeny.

    I am confused by this: “…are usually the same folks who argue that the Eighth Amendment prohibits punishments the framers couldn’t have conceived.”

    That was a poor piece of phrasing on my part, I was rushing to get done before bed. ;)

    What I was trying to say is that it usually seems to be the case that people who make a quasi-originalist argument (one that’s flawed, by the way) that the 2d Amendment only protects the bearing of weapons that the framers knew or could have conceived of, apply a very different (and in some ways inconsistent) standard to the remainder of the Bill of Rights, particularly the Eighth Amendment. They usually argue that the Eighth Amendment’s protections must evolve with society, comporting with – in the famous phrase from Trop – the “evolving standards of decency that mark the progress of a maturing society,” and thus, out of one side of their mouths they argue that an AK-47 is not protected by the 2d Amendment because although it falls within our modern understanding of “arms,” the framers couldn’t conceieve of it in 1791, while out of the other side, they argue that a method of execution that would have been unimaginably humane to the framers is unconstitutonal because it fails to comport (so they say) with our modern understanding of “cruel and unusual.” That is, “arms” must freeze in time in 1791, while “cruel and unusual” must be living and evolving.

    (To be fair, it’s not nearly as easy a point as it might at first appear, but I just don’t believe that the people who advance such positions are reporting a deeply nuanced position rooted in years of careful Constitutional exegesis – I think they’re starting with a result and backfilling a reasoning from there, using constitutional provisions, as Judge Sack put it “as drunks use lampposts: more for support than illumination.”)

    I entirely agree that “it does not make sense, in terms of originalism, to prohibit lethal injection because the Framers couldn’t conceive of it,” although to be candid, my own views on the scope of “cruel and unusual,” particularly after almost a century of their construction are not settled. In CollegeSavingsBank v. Florida Prepaid, 527 U.S. 666 (1999), Justice Scalia simply assumed that whatever the merits of Hans v. Louisiana, 134 U.S. 1 (1890) as an original matter, it cannot be deprived of force as “a venerable precedent … imbedded within our legal system for over a century,” 527 U.S. at 689, and if that is true of Hans, I find it hard to see why it is not also true – to some extent, at least – of Weems v. United States, 217 U.S. 349 (1910) (“we cannot think that it was intended to prohibit only practices like the Stuarts’, or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.” Id. at 273). Of course, stare decisis can’t protect precedent that is simply wrong, no matter how venerable or deeply-imbedded (e.g. Erie RR Co. (overruling Swift v. Tyson after 96 years); Brown v. Board (overruling Plessy v. Ferguson after 58 years); cf. Roe v. Wade (a spring chicken at 34), but when what is at issue is a reasonable construction of ambiguous text, as were both Hans and Weems, the call becomes a lot harder, and gets harder still as those precedents get more deeply imbedded, unless one is willing (as Justice Thomas is and as Justice Scalia and I am not) to abandon stare decisis in constitutional interpretation entirely.

    The 8th Amendment and Article II are THE toughest nuts to crack.

  14. Simon,

    Thank you for your response. :) I’ll re-read and digest.

  15. <blockquote>the framers couldn’t conceieve of it in 1791, while out of the other side, they argue that a method of execution that would have been unimaginably humane to the framers is unconstitutonal because it fails to comport (so they say) with our modern understanding of “cruel and unusual.” That is, “arms” must freeze in time in 1791, while “cruel and unusual” must be living and evolving.</blockquote>
    Understood.
    For some reason, I thought you originally meant (ha!) that someone would argue that the frozen-in-time definition of “cruel and unusual” would prohibit lethal injection, as the Framers did not anticipate that particular method of execution.
    On a different note, I’m not sure how you can have an originalist interpretation of “arms” and still be consistent with the “well-regulated militia” clause. It would strain constitutional jurisprudence to allow an interpretation of one clause to write out a neighbouring clause.
    You’re quote the optimist about <i>Roe</i>’s future. ;)

  16. For some reason, I thought you originally meant (ha!) that someone would argue that the frozen-in-time definition of “cruel and unusual” would prohibit lethal injection, as the Framers did not anticipate that particular method of execution.

    Right – I can’t imagine that it could, although I would say that just because the death penalty does not itself offend the 8th Amendment, there are methods of execution that I think would violate the provision, even if unknown to the framers. Although the Supreme Court has essentially said otherwise (In Re Kemmler, 136 U.S. 436 (1890)) electrocution, I think, might well violate the 8th amendment because while the precise method was unknown to the framers, the mechanism of death closely resembles two punishments that were very much known to the framers and clearly prohibited by the 8th amendment, burning and boiling. Fortunately, since that method is now for all intents and purposes a dead letter, that point can remain an intriguing point of debate.

    Re Roe, I go back and forth on what’s likely to happen. I have to suspect, alas, that the cynics are correct, and that Roberts and Alito will prefer to nibble around the edges rather than squarely repudiate the case, which is frustrating for me, because while both approaches will likely have the effect of ceding ground on abortion regulation back to the democratic process, which is desirable in itself, I want a full-throated repudiation of Roe‘s reasoning as a matter of law, not just a palace coup on its result. My deepest commitments are to how and who – structure and federalism – rather than what, and if I could destroy Roe‘s reasoning at the cost of leaving its result intact, I’d make that faustian bargain, although obviously I’d prefer to do away with both.

  17. Full disclosure: I have not studied the Eighth Amendment in much detail.

    Re: electrocution. While it does resemble burning and boiling, it would seem to be less painful and much faster than either. (Pain and expediency seem to be reasonable factors to use in analysing cruelty, although I fear that too much of this thinking will lead to a Justice O’Connor-type 8-point balancing test. ;) )

    I just read some of the history of the electric chair. (Thanks for bringing this up – it’s some really fantastic bedtime reading….) Apparently, Kemmler was the first person to be so executed; New York assumed that he (and others) would die instantaneously, thus rendering the chair an improvement over other methods of capital punishment. (Kemmler had to be electrocuted twice; his body caught fire the second time.)

    As for the dead letter: Nebraska still has the electric chair as its only method of execution. Nine other states permit it as an alternative to lethal injection; some only allow it if lethal injection is impractical. (If I recall correctly, the existence of an alternate method does not render the entire scheme constitutional; if both methods are cruel and unusual, the existence of a choice does nothing to change that.) Interestingly, some states have removed the choice (i.e. prisoners who committed crimes or declared their decision prior to a certain date may choose between lethal injection, electrocution, or firing squad – the latter actually allows for organ donation, which, IMO, would make that method attractive to a hypoethical charitable murderer)… it seems odd to do so, given that the last remaining method of execution could be declared unconstitutional and therefore render the entire system cruel and unusual.
    http://www.deathpenaltyinfo.org/article.php?scid=8&did=245

    If you have the stomach for it, you can read about some botched executions:
    http://www.deathpenaltyinfo.org/article.php?scid=8&did=478

    When it’s not 1 am, I’ll look around for stats about the length of time it takes to die for each particular method of death and the related number of botched executions (then convert to a percentage of the total). The problems with lethal injection seem to be limited to finding suitable veins – an issue that a fair amount of normal citizens encounter when they go to the hospital. It would take a really interesting interpretation of “cruel and unusual” to state that Framers didn’t want doctors trying to find veins. (Ah, originalism – those people did bloodlettings, right?)

    Nevertheless, many legislatures seem to be enamoured of the latest scientific discoveries – a love affair that also infects the Court from time to time. From a purely pragmatic perspective, those are the ones that are most likely to be cruel, as their effects are entirely unknown. Kemmler could well have been decided differently if the Supreme Court took up the issue after his botched execution (i.e. if the first person to appeal had the benefit of Kemmler’s rather gruesome death).

    Justice Scalia once said that an originalist reading of the Eighth Amendment does provide some level of protection: if, for example, thumbscrews would be considered cruel and unusual in 1790 but not now, the 8th would protect against their use.

    I’m off in search of more normal bedtime reading. Will get to your Roe comments (which I agree with) and the rest of your previous comment tomorrow.

  18. Regarding Roe:

    I would also love to see it overturned – being lousy law with no basis in the Constitution. I don’t think that it will be overturned, though – but I don’t think that Roberts et al will nibble around the edges, either. Carhart was, IMHO, properly limited to the issue before it: whether or not a ban on partial birth abortion meets constitutional muster. You need not overturn Roe to answer that question in the affirmative.

    I do think we will see a gutting of Roe: the Court may declare that the reasoning is valid but that a particular ban on abortion meets constitutional muster – perhaps being narrowly tailored to meet a compelling state interest. (After all, no constitutional right is really absolute: one of the many problems with Roe is its implicit statement that no abortion ban can meet intermediate or strict scrutiny.) Let me know if I’m off on this one.

    Georgia is writing an abortion ban that includes all sorts of language about the harm of abortion. It does seem as if they are gearing up for a “compelling state interest” argument. The problem with that is, of course, that the Court will end up deciding which bans are narrowly tailored and which justifications for prohibiting infanticide are compelling. We’ll have traded one bad system for another.

    Medical care is a quintessential state interest. (For that reason, I really don’t like the PBA ban that Congress passed.) The Ninth and Tenth Amendments tell us that if people delegate the power to regulate abortion to their states (via state constitutions and lawmaking power), then the feds – and the Supreme Court – have to step out. Roe assumes that the people cannot delegate the right to regulate the abortion industry to their respective states, which is utterly strange and irrational.


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