Matthew Yglesias (July 25, 2007) - The Federalism Dodge (Domestic Policy)

Gun control is actually a really bad example for this thesis, since it's much more an urban/suburban/rural division than a liberal/conservative one. Setting gun control policy at the state level is just as difficult as setting it at the federal level in most cases, because, for example, Milwaukeeans and northern Wisconsinites have pretty divergent views on the subject.

Posted by Aaron S. Veenstra | July 25, 2007 10:22 AM

Guns are not a local issue. As Mayor Bloomberg has been picking at for a year now, the guns that are illegally sold in low-enforcement states like Virginia and the Carolinas, eventually find their way to urban centers across the US, causing lots of problems (to put it lightly).

Posted by Dave White | July 25, 2007 10:32 AM

Yes, Matt, but gay marriage might be a pretty good issue to be decided on a state by state basis. Especially since the Courts have found a public policy exception to the Full Faith and Credit Clause.

Posted by Sam | July 25, 2007 10:34 AM

Yes, Matt these are controversial issues because the substance is inherently controversial, but deciding them at the federal level only exacerbates the controversy. Letting them be decided at the local or state level takes some of the controversy out by allowing people who disagree with the ultimate stance of the state to have a chance to move somewhere else where there views may dominate, unlike a national solution where one set of views must be imposed on the losing faction.

Posted by Karl | July 25, 2007 10:44 AM

This is such a deeply stupid argument:

"Be that as it may, this is mostly nonsense. Some issues are genuinely local in nature, and gun control has many truly local characteristics. "socially conservative and liberal states to each set rules that reflect the prevailing values inside their borders. But "gay rights or aspects of abortion" aren't like that. If it's wrong to murder gay teens, then it's wrong in Iran and wrong in Idaho, and also wrong in Illinois."

Remind me again where in the US it's legal to go on a killing spree? How exactly are existing laws not sufficient to punish someone for a horrific crime? And, why do I need to care whether someone committed a murder because they hate gays, or because they need a fix? The victim is dead in either case, and existing law punishes both based on whether the crime was premeditated or not.

Layering additional law on just to make (insert political interest group here) happy is a bad way to make law. All it does is encourage prosecutors to become more political than they already are.

Posted by James Robertson | July 25, 2007 10:45 AM

"Some issues are genuinely local in nature, and gun control has many truly local characteristics."

Nonsense. The desire to violate the 2nd amendment has only local appeal, this is true, but whether or not a fundamental civil liberty, explicitly listed in the Bill of Rights is going to be respected or not is NOT a "local issue". Any more than states get to locally violate any other civil liberty.

Posted by Brett Bellmore | July 25, 2007 10:59 AM

Brett, who regulates the "well-regulated militia" if not the states?

Posted by Led | July 25, 2007 11:04 AM

Well, according to Article 1, Section 8,

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

that would depend. Not that it really matters, in as much as the right is posessed by the People, not the militia. People living in NYC are still part of the "People".

Posted by Brett Bellmore | July 25, 2007 11:09 AM

Remind me again where in the US it's legal to go on a killing spree? How exactly are existing laws not sufficient to punish someone for a horrific crime?

In the South, in the first half of the last century, lynching was rampant and the states' laws against murder were not enforced. Federal legislation would have allowed the FBI to step in, but it never got passed the Senate.

And, why do I need to care whether someone committed a murder because they hate gays, or because they need a fix? The victim is dead in either case, and existing law punishes both based on whether the crime was premeditated or not.

The law punishes the criminal more severely if the crime was premeditated. Hate-crime legislation proposes to punish the criminal more severely if the crime was committed not only against the direct subject, but also indirectly against a class of people - black people, gay people, WASP men, etc. You can argue that proving that intent is too difficult and unreliable to justify the law, but you shouldn't misunderstand or misrepresent the purpose of the law.

Posted by dob | July 25, 2007 11:09 AM

It's true that from a philosophical perspective gay rights, and other moral issues, are not local issues -- that if it's wrong to discriminate against gays or abort fetuses in one jurisdiction it's wrong in all jurisdictions. (I'll stay away from the obvious moral relativism argument that morality is determined at the local level, which it is, since it's a completely impractical argument politically speaking) The thing is that federalism or nationalism are of different strategic, pragmatic value, and it's not necessarily wrong to argue for approaching the politics of a moral issue from the perspective that is most likely to succeed (i.e. reduce the quantity of morally undesirable outcomes).

I want abortion to be a national issue because I think that the abortion rights side can win at the national level and that if it were handled state by state there would be many more people prevented from getting abortions. Anti-abortion people reasonably think that making abortion a state issue would make it easier for them to stop at least some of the abortions that are happening.

Conversely, I'm sympathetic (although undecided) to the perspective that gay rights should be handled state by state for now. A national gay rights referrendum would surely fail right now, but some states will be able to pass it, and some already have, thus increasing the total amount of gay rights in the nation. After a while the gay-friendly states will persuade other states to be gay-friendly, and ultimately we'll be able to handle things nationally. I know there are compelling counterarguments to this position, and as I said I'm not certain that this is my preferred approach.

I don't think I'm making and ends-justify-the-means argument here, but I'm prepared to be shown that I'm wrong. I think that being legislatively pragmatic in order to increase the total amount of morally acceptable outcomes is justifiable so long as the legislation in question isn't itself immoral, and I don't at the moment think that questions of jurisdiction have moral content.

Posted by Galen | July 25, 2007 11:22 AM

Brett: Do you think the fact that Congress and the states can regulate the militia helps your argument? I was only hoping for a concession that at least the states can do the regulating. Of course the fact that the "right to bear arms" is conditioned by its connection to a well-regulated militia "really matters." It means that the right is not absolute in the same way the free exercise of religion or privilege against self-incrimination is absolute. It is, on the very face of the amendment, subject to regulation. There will obviously be grey areas and disputes about what type of regulation is permissible, but that's why we have a Supreme Court.

Posted by Led | July 25, 2007 11:31 AM

I find it odd that Matt would bring up Iran--although we all agree what's going on there is wrong, few of us advocate invading the place to enforce our belief. In that case, enforcement of our moral norms would cause more problems that it would solve, even though nearly all Westerners insist that the moral norm in question (don't kill people just cause they're gay) is absolute.

Posted by Consumatopia | July 25, 2007 11:48 AM

Um, does anyone else think it's strange that MY never mentions a pretty powerful argument for making these state-by-state issues? Namely, that the Constitution of the United States says they should be state-by-state issues. I know, it's quaint to actually care what the Constitution says, but I think it's worth mentioning.

Posted by too many steves | July 25, 2007 11:49 AM

Led, I don't think that both Congress and the states can regulate the militia is even remotely relevant to my argument, so perhaps I shouldn't have bothered to correct your error on that point. That's all I was doing.

"Of course the fact that the "right to bear arms" is conditioned by its connection to a well-regulated militia "really matters.""

If you think the 2nd amendment conditions the right to keep and bear arms on the militia connection, then your grasp of English grammar is seriously lacking.

"It means that the right is not absolute in the same way the free exercise of religion or privilege against self-incrimination is absolute."

Agreed, the right is not absolute. However, the current debate is not between people who think it's absolute, and people who think it's subject to reasonable regulation. It's between people who think "reasonable regulation" means "don't shoot your neighbors", and people who think it means, "Whole regions of the country can effectively be denied any exercise of this right at all."

In any event, Guliani's federalism dodge is a loser from the word "go": Nobody who is put off by his positions on gun control or abortion is going to feel like pretending his late conversion to the cause of federalism is believable, even if they thought a federalist approach was defensible in theory.

Posted by Brett Bellmore | July 25, 2007 11:50 AM

Led:

I've always been skeptical of the argument that the "well regulated militia" clause is intended as a restriction rather than as an explicit justification. I've always seen the real point of that amendment as being that the government shouldn't take away people's guns because the people need to be able to overthrow the government if things get really bad. The "militia" is specifically described as necessary for "the security of a free
State" and I think the correct understanding of "free" is "not tyrannized by its government." I see the "well regulated" part not as meaning "the government gets to regulate these guys" but rather as a protection of the citizens' right to form their own paramilitary groups -- that not only can't the government suppress the right to bear arms but it can't even stop you from forming an army.

The real problem with the second amendment is that it makes no mention of what kinds of weapons are allowed to be owned -- on it's face it means that private citizens should have the right to own nuclear warheads. Obviously that's a terrible idea, so we've entered into the business of misinterpreting the amendment in order to be able to place reasonable restrictions on weapons that are clearly too dangerous to be in the hands of the public, but for obvious reasons we can't seem to agree on the best _way_ to misinterpret it.

Posted by Galen | July 25, 2007 11:52 AM

"The real problem with the second amendment is that it makes no mention of what kinds of weapons are allowed to be owned"

On the contrary, it DOES mention what kind of weapons: It says "arms", which is a term with a distinct meaning, which makes perfect sense under the circumstances: The sort of weapons individual solders were expected to carry about on their person.

Nukes won't be "arms" until the federal government starts issuing backpack nukes to soldiers as they graduate from boot camp. Assault rifles, on the other hand, will remain "arms" until the government STOPS issuing them, and starts expecting it's soldiers to carry around super soakers.

Posted by Brett Bellmore | July 25, 2007 11:58 AM

Given the importance of the necrophile vote to Democrats nationally it's a good thing our constitution permits California Democrats to deal with this important matter in their own way.

Posted by Linus | July 25, 2007 12:12 PM

Brett -- I can't find any definitions that limit the term "arms" to the kinds of personal weapons that individual soldiers carry. American Hertigage specifically says: "A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms." I think what you're describing is usually referred to as "small arms."

That said, if you wanted to make an Original Intent argument you might say that the writers of the bill didn't have a conception of "arms" that extended beyond field artillery, so their meaning of the term is restricted to small arms and field artillery and doesn't include jet fighters and nukes. But that's a pretty slippery slope, since there's an awful lot of other modern stuff they didn't concieve of that we think they did intend to protect.

Posted by Galen | July 25, 2007 12:15 PM

It's between people who think "reasonable regulation" means "don't shoot your neighbors", and people who think it means, "Whole regions of the country can effectively be denied any exercise of this right at all."

Actually the NRA opposes any and all regulation of guns including gun registration, waiting periods and regulation of gun shows. While some communities such as D.C. have tried to completely ban weapons, I think most gun control advocates would be happy with making it more difficult for just anyone to swing down to the local Wal-Mart to pick up a Glock.

Posted by Col Bat Guano | July 25, 2007 12:29 PM

If you think the 2nd amendment conditions the right to keep and bear arms on the militia connection, then your grasp of English grammar is seriously lacking.

It's a basic, uncontroversial canon of construction to interpret a provision of a contract, statute, constitution, etc., in accordance with its stated purpose. Ignoring an entire clause, on the other hand, is a somewhat radical approach.

Galen's argument -- that the purpose of the right is to permit self-regulating militias -- is much better. But I'm still not persuaded for various reasons. Textually speaking, a militia is, by definition, self-regulated. Adding "well-regulated" would be redundant. From a structural POV, none of the original amendments applied to the state governments until the 14th amendment. People at the time didn't generally fear tyranny by the state governments or relied on means other than the federal constitution to protect them from it.

Posted by Led | July 25, 2007 12:31 PM

"Yes, Matt these are controversial issues because the substance is inherently controversial, but deciding them at the federal level only exacerbates the controversy. Letting them be decided at the local or state level takes some of the controversy out by allowing people who disagree with the ultimate stance of the state to have a chance to move somewhere else where there views may dominate, unlike a national solution where one set of views must be imposed on the losing faction."

Except that nobody actually has gay marriage imposed on them. Not enforcing anti-lynching/murder laws imposed death on African-Americans and Italian-Americans in the South. Not allowing for gay marriage to be practiced everywhere imposes a barrier to a common life choice for gays and lesbians. Not allowing a woman to have an abortion imposes a restriction of choice on the woman. Not allowing interracial couples to marry robbed them of that life choice. In all of these cases, it is the person who has their rights limited by the state who has anything imposed on them. Federalizing these issues actually makes these people freer. The only people who have anything are 1) the KKK who can now be thrown in jail for murder and 2) people who work for the government who have to uphold the law.

Posted by Reality Man | July 25, 2007 1:05 PM

I wouldn't ignore the clause; In context, it makes perfect sense:

1. A well regulated militia is necessary to the security of a free state.

2. However, states may neglect or even deliberately abolish the militia system. (Not all governments WANT to maintain a free state, after all!)

3. But if the right of the people to own and carry weapons suitable to militia use is not infringed, a pool of people owning the weapons and familiar with their use will exist, from which a militia may be raised in an emergency, in spite of #2.

4. So, guaranteeing that the right of the people, NOT the militia, to own and carry military weapons, will not be infringed, furthers the aim of the amendment: Protecting the viablity of the militia system against the neglect or deliberate animus of government.

Posted by Brett Bellmore | July 25, 2007 1:10 PM

From the English Bill of Rights, which was the inspiration for our own Bill of Rights:

"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law"

"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"

Now from our own Bill of Rights:

"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."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Make of the differences in language what you will.

Posted by Reality Man | July 25, 2007 1:12 PM

This isn't one of Matt's best issues.

The point is some people believe abortion is murder and some don't; that's what is at issue.

The issue is not whether murder should be criminalized in some areas and not in others.

Murder will be punishd in all areas. The question stands as to whether or not abortion is murder.

Posted by goosen | July 25, 2007 1:19 PM

I understand your point about "well regulated" being redundant if it's intended to mean "self regulated," but here's an interesting thing: http://www.etymonline.com/index.php?term=militia

Now, I found this on the internet and they didn't cite a source and I wasn't able to easily turn up the source, so take it with a grain of salt, but the claim is that in 1777 one meaning of "militia" was "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not." American Heritage also has, as definition 3, "The whole body of physically fit civilians eligible by law for military service."

So arguably "militia" by itself doesn't imply regulation. The Second Amendment doesn't specify who does the regulating, and the rest of the bill of rights is focused on the rights of the citizens, not the rights of the states. Thus, the regulation in question is intended to include self-regulated militias.

A possible counterargument would be that the definition of "militia" as "civilians fit for military service" is intended to refer to the government's ability to conscript soldiers from the citizenry in times of need, as was done during the Whiskey Rebellion. These conscripts would be expected to maintain their own weapons (in fact during colonial times it wasn't uncommon for the able-bodied men to be _required_ to have arms). In this case "well regulated" would basically mean that the government could easily institute conscription when it needed to.

But regardless of all of that, a justification is different from a restriction. The amendment is clearly saying that the population should be armed, military style, and that it's important that even if the government decides it doesn't _want_ the people to be armed it doesn't get to change its mind. The people writing this amendment had just fought a war against their own government, and the Bill of rights is pretty clearly intended to guard against tyranny from the new government that they were in the process of forming. And militias had been essential in the overthrow of the British. There would be no need to guarantee in the constitution that the people were allowed to bear arms and form armies if the point was to protect the right of the government to conscript citizen soldiers -- the government would have that power anyway. The Bill of Rights is protecting the citizens from having the federal government deprive them of their ability to defend themselves. Furthermore, the point of the new Constitution was to consolidate power in the hands of the federal government after the failure of the Articles of Confederation and the bill of rights was supposed to be a hedge against the dangers of that consolidation, i.e. the risk of tyranny. The constitution could easily have said "the States are allowed to maintain their own armies," but instead it focuses on the rights of _individual_ people to bear arms and participate in armies.

But the fact that we have a legitimate disagreement over something as basic as whether or not the right to bear arms is intended to be limited to government organized situations or is extended to all private citizens is, I think, evidence in itself that the Second Amendment is badly broken.

Posted by Galen | July 25, 2007 1:19 PM

In any event, Guliani's federalism dodge is a loser from the word "go": Nobody who is put off by his positions on gun control or abortion is going to feel like pretending his late conversion to the cause of federalism is believable, even if they thought a federalist approach was defensible in theory.

It's all dogwhistle stuff for the thinktank wingers.

This means nothing for the man on the street. It means he gets good op-ed pieces written about him by the right movers and shakers, and ups his fundraising capabilities in the appropriate circles.

Posted by MasonMcD | July 25, 2007 1:22 PM

Posted by goosen | July 25, 2007 1:19 PM :"The point is some people believe abortion is murder and some don't; that's what is at issue. The issue is not whether murder should be criminalized in some areas and not in others. Murder will be punishd in all areas. The question stands as to whether or not abortion is murder."

It is actually the issue. Murder is legally defined. There is no universal definition. If a husband came home and caught his wife in bed with another man and he shot them both some jurisdictions used to be lenient and some did not. Murder will be punished most places because we all agree on the larger category, but the specifics of what amounts to murder will always change. The best solution is to get away from arguments about whether abortion is murder. I am happy to tolerate your view as long as you are happy to tolerate mine. Which means these ought to be issues for States as murder is so that toleration of difference can be given free expression. Let every State decide if it wants Gay marriage or legal abortion. Do not use the Courts to impose them on everyone. Some states will legalize abortion and gay marriage. The sky may fall but I doubt it. Everyone will be able to learn from the experience. If I don't like the jurisdiction I am in, I can move. What is wrong with that? Guliani is gutless but I think he is on to something.

Posted by HeiGou | July 25, 2007 1:25 PM

Re: If you think the 2nd amendment conditions the right to keep and bear arms on the militia connection, then your grasp of English grammar is seriously lacking.

I would suggest going back to school. The construction of the first part of the 2nd amendment is called participular absolutive. (In Latin which has cases it would be an ablative absolutive). The leading clause gives the condition that limits or explains the main clause. You can reword it in more contemporary English by starting it with a "Since" or a "Because" ("Because a well regulated militia is necessary...") Now there are various ways to interpret even the modern formulation of this amendment, and I think this goes back to the point under discussion. Either we allow for local (state by state) interpretations in cases like this, or we must necessarily rely on the Supreme Court to act like the Vatican and provide a one-size-fits-all "infallible" interpretation. In matters like this one where there are no practical reasons to require a single binding interpretation over everyone everywhere I think federalism is appropriate.

Re: I've always seen the real point of that amendment as being that the government shouldn't take away people's guns because the people need to be able to overthrow the government if things get really bad.

Huh? The militia's role, historically, was never to "overthrow the government". That didn't even happen in English history (It was Cromwell's New Model Army that overthrew Charles I). The militia's role was to provide for local defense against Indians, raids from Spanish territory on the borders, pirate attacks, local outlaw bands etc., so the federal government would not need to maintain a large standing army in peacetime and garrison it throughout the country to guard against such threats. The Founders most certainly did not intend to create a country where routine civil war was to be a feature of politics!

Posted by JonF | July 25, 2007 1:35 PM

"In the South, in the first half of the last century, lynching was rampant and the states' laws against murder were not enforced. Federal legislation would have allowed the FBI to step in, but it never got passed the Senate."

Last time I looked, it wasn't 1923 anymore. But hey I could be reading my calendar wrong.

"The law punishes the criminal more severely if the crime was premeditated. Hate-crime legislation proposes to punish the criminal more severely if the crime was committed not only against the direct subject, but also indirectly against a class of people - black people, gay people, WASP men, etc. You can argue that proving that intent is too difficult and unreliable to justify the law, but you shouldn't misunderstand or misrepresent the purpose of the law."

I argue that punishing more severely on those grounds is the road to hell. It's simply a modern "feel good" version of past discrimination practices.

Posted by James Robertson | July 25, 2007 1:41 PM

Posted by JonF | July 25, 2007 1:35 PM:"The Founders most certainly did not intend to create a country where routine civil war was to be a feature of politics!"

Really? Not even Thomas Jefferson? He is said to have said:

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

Every generation needs a new revolution.

Posted by HeiGou | July 25, 2007 1:43 PM

HeiGou,

I wasn't very clear.

I agree with you.

Murder will be punished everywhere and different states will decide what is and what is not murder.

Posted by goosen | July 25, 2007 1:55 PM

"It's all dogwhistle stuff for the thinktank wingers."

Something like that: It's meant to provide people who don't really care about the issues in question with some cover when they come out in favor of him, so they don't have to admit that they're cool with Guliani banning guns and aborting fetuses, and nominating judges who feel the same way. A lot of the more implausible lies in politics are like that, not actually meant to be believed, but just to give somebody else poltical cover by pretending to believe them.

Posted by Brett Bellmore | July 25, 2007 2:07 PM

I certainly don't mean to suggest that "routine civil war was to be a feature of politics," which is why as said "really bad" rather than, say, "annoying." And for the founders, the most recent war in memory in fact had relied heavily, especially at the beginning, on militias to throw off the yoke of the oppressive British regime. It's not about endorsing violence as part of routine politics, but about ensuring that in cases where the government _needs_ to be overthrown it will be possible.

It's true that the primary role of the militia was defense against the threats you list, but if the _only_ point is to ensure defense against outside threats and limit the need for a standing army there's no need to guarantee a "right" in the Bill of rights -- the government already has the power to require militias and an armed citizenry for those purposes if it wants too. The Bill of Rights is about protecting the citizens from the abuses of the government.

I would also suggest, although I have no evidence to back it up, that part of the idea is that if the citizens are armed the government will be less likely to _become_ oppressive because they know they can't get away with it, which would actually limit the need for violent overthrow. It could be seen as a form of deterrance.

Posted by Galen | July 25, 2007 2:25 PM

"In all of these cases, it is the person who has their rights limited by the state who has anything imposed on them. Federalizing these issues actually makes these people freer."

I would say that is partially right. However, whenever the state acts, particularly in social issues, it is stamping societal approval on the stance it is taking, whether it is granting tax credits for home purchases or recognizing only straight marriage or banning certain abortion procedures. As such the losing side of these cultural issues must then tolerate the official societal acceptance of a position with which they disagree. So while it may make the beneficiaries of such a stance more free, it also makes the losers less free. The whole 'every action has an equal and opposite reaction' idea and the reason why the state should usually stay out of these cultural issues.

Posted by Karl | July 25, 2007 2:36 PM

Interestingly, within the body of the constitution, there's actually a legal entity established to work out these sort of legal disagreements (on the meaning of the 2nd amendment, for example). If the 2nd Amendment really does outlaw local gun regulations against automatic weapons or registration, you'd think there'd be quite a lot of legal precedent set by the Supreme Court overturning those laws.

And Matt, Brad Plumer has had great posts in the past on why gun control just doesn't work locally, though others have brought up the main points here.

Posted by Sam L | July 25, 2007 2:39 PM

Interestingly, within the body of the constitution, there's actually a legal entity established to work out these sort of legal disagreements (on the meaning of the 2nd amendment, for example). If the 2nd Amendment really does outlaw local gun regulations against automatic weapons or registration, you'd think there'd be quite a lot of legal precedent set by the Supreme Court overturning those laws.

And Matt, Brad Plumer has had great posts in the past on why gun control just doesn't work locally, though others have brought up the main points here.

Posted by Sam L | July 25, 2007 2:39 PM

The idea that gun ownership is intended to allow citizens to resist state power is profoundly silly, particularly in today's context. The only way that could work in practice would be to allow individuals to possess weaponry comparable to that possessed by the state: i.e. tanks, grenade launchers, attack helicopters, high explosives, chemical weapons, nukes, etc. Even then, what local militia could hope to resist long against the weight of the U.S. miltary machine?

Such fantasies do nothing to bring us closer to a sensible balance of individual gun rights and the broader public interest.

Posted by Virginia | July 25, 2007 2:42 PM

"If the 2nd Amendment really does outlaw local gun regulations against automatic weapons or registration, you'd think there'd be quite a lot of legal precedent set by the Supreme Court overturning those laws."

Well, you would if you had a very Polyannish image of the Supreme court. In which case you must find an awful lot of the legal history of this country hard to understand.

Meanwhile, back in the real world, the Supreme court has, for nearly 70 years now, refused certiori without comment to every case, without exception, where the meaning of the 2nd amendment was raised as an issue. Leaving the lower courts to play a game of "telephone" with the somewhat ambiguous outcome of a trial in abstentia. This is not be behavior of a Court honestly taking any kind of position at all, it's the behavior of a Court ducking an issue it doesn't want to get involved in.

Posted by Brett Bellmore | July 25, 2007 2:48 PM

Giuliani's federalism dodge is particularly bullshitty, given that he will on the one hand say that abortion should "be left to the states," and on the other hand explicitly support the Supreme Court's decision to uphold a federal ban on an abortion procedure.

For all the smart discussion at play here, the important thing to note is that those contradictory position means that, for Giuliani, the "federalism dodge" is just that - a dodge.

Posted by SDM | July 25, 2007 2:49 PM

"The idea that gun ownership is intended to allow citizens to resist state power is profoundly silly, particularly in today's context."

Assuming this were true, (I don't think it is.) so what? It just means we have a profoundly silly Bill of Rights, it doesn't change the fact that it's the highest law of the land, which every public official has sworn an oath to see enforced.

Don't confuse arguments about what the Constitution ought to say, with arguments about what it does say. It's the latter that's the law, until you convince enough people that the 2nd amendment is profoundly silly to get it repealed.

Try it: I suspect you'll find your sense of humor isn't as universal as you believe.

Posted by Brett Bellmore | July 25, 2007 2:54 PM

Virginia --

I largely agree that the idea that we either currently need to violently resist the government or that we would be able to effectively are relatively silly, but that's not the point of what I'm saying.

The problem is that under current constitutional circumstances we _can't_ come "closer to a sensible balance of individual gun rights and the broader public interest" because the Second Amendment is hopelessly broken -- we pass our gun laws by deliberately misinterpreting it because correctly interpreting it would lead to totally unacceptable outcomes. It's a genuine constitutional crisis, and I think that's anything but silly.

Posted by Galen | July 25, 2007 3:06 PM

Are you sure that military resistance wouldn't be effective, Galen? It seems to be working out OK in Iraq.

And yep, Brett's right. The Supremes have been ducking the issue ever since they accidentally touched on it back in the 30s.

I was pleased to see that Sanford Levinson's "The Embarassing Second Amendment" is available online.

http://www.guncite.com/journals/embar.html

Posted by AlanC9 | July 25, 2007 3:28 PM

I'm not completely sure, and obviously it would depend on a variety of circumstances. The key difference with Iraq, though, is that the US did the overthrowing of the Saddam government, and the insurgency isn't trying to "overthrow" us in the way that one tries to overthrow an established government that's governing its own home. When the Iraqis tried to overthrow Saddam they failed. And the Iraqi insurgents are (I think) considerably more heavily armed than civilians in the US are.

Posted by Galen | July 25, 2007 3:38 PM

"we pass our gun laws by deliberately misinterpreting it because correctly interpreting it would lead to totally unacceptable outcomes."

The fact that some people in a position to pass laws do not find the consequences of obeying an honest interpretation of the Constitution acceptable does not constitute a constitutional crisis. It constitutes a violation of their oaths of office.

You will find that an awfully large fraction of the population, perhaps even a majority, would find the consequences of correctly interpreting the 2nd amendment, (As opposed to the wild strawmen set up by gun control advocates.) entirely acceptable. Those who do not find the consequences of such an interpretation acceptable are perfectly free to try to amend the 2nd amendment so that it, honestly interpreted, means something they like better.

I note that 44 of the 50 states, (Representing the vast majority of the population, BTW.) have similar provisions in their constitutions, some adopted fairly recently, and no such provision has been repealed of late. This suggests to me that such an effort at repeal would fail miserably, which is doubtless why opponents of an honest interpretation of the 2nd amendment prefer dishonest interpretations to use of Article V.

Posted by Brett Bellmore | July 25, 2007 3:39 PM

Would it really be unacceptable to just bite the bullet (sorry!) and go to a strong, individual-rights interpretation of the Second Amendment? Would it actually make things that much worse than they are right now?

Back on the main topic: isn't the attraction of the federal solution that it enables more people to live under local regimes that reflect their own values? For issues where we can't generate a social or moral consensus, I don't see anything wrong with taking this dodge.

Posted by AlanC9 | July 25, 2007 3:44 PM

I should clarify. Living in NYC, I have some sympathy for Mike Bloomberg's position on how out-of-state gun sales are undermining our attempt to have greater restrictions on guns. But since we're not going to win that point, apparently, we'd be better off nationalizing the issue, not leaving it up to the states. Restrictions don't seem to be working anyway, and there are a lot of things we could be doing on the enforcement side if we depoliticized the issue.

Posted by AlanC9 | July 25, 2007 3:52 PM

When I say "unacceptable outcomes" I'm not talking about assault rifles, or even tanks, I'm talking about things like nuclear bombs, chemical and biological weapons, and ballistic missiles. I would be shocked to find that "an awfully large fraction of the population, perhaps even a majority" would be okay with private citizens owning those things. And the reason I've been arguing my points so strenuously is that I genuinely think my concern about the interpretation of the Second Amendment is correct.

I'm actually not sure what I think the optimal gun control policies would be, and assault rifles are actually in the realm of things I would seriously (although cautiously) consider allowing. I'm not trying to repeal the Second amendment, I'm trying to get us to rewrite it so that it actually works. When the laws are based on a misinterpretation of the law of the land, that's bad for both sides of the debate because there's no longer a standard of truth to measure proposed laws against.

Posted by Galen | July 25, 2007 4:17 PM

Yeah, Galen, and when I talk about "wild strawmen set up by gun control advocates", I'm ALSO talking about things like nuclear bombs, chemical and biological weapons,k and ballistic missiles. Which have got squat to do with any honest interpretation of the 2nd amendment. As you'll notice, nobody on MY side of this debate pretends the 2nd amendment protects them.

The 2nd amendment covers Arms, which means the sort of weapons a soldier would be expected to carry about on his person. Knives, yes. Handguns, yes. Rifles, certainly. Maybe even hand grenades, though I think prohibiting carrying them in public would fall under the rubric of "reasonable regulation". Weapons that are crew served and strictly controlled even in a military context are not covered.

Posted by Brett Bellmore | July 25, 2007 4:37 PM

This whole thread is ridiculous. I can't bring myself to read more than half of it.
Everybody knows that Giuliani will never be president, regardless of what he thinks about federalism.
Of course, we could get hit again, allowing him to play his little faux-heroic drama for the cameras, but if that happens, I'll be out of here, so good luck to the rest of you.

Posted by Henderstock | July 25, 2007 4:48 PM

Nationalizing cultural issues is why we have had two terms of George W. Bush. It is "what's the matter with Kansas." It makes every national election, every Supreme Court nomination, into a national referendum on cultural issues.

Pro-life people(and I am one) will never vote for a candidate who would further the current abortion legal environment.

Because of this, every progressive candidate starts with 30-40% of the electorate motivated to vote against him.

Posted by JohnMcG | July 25, 2007 5:07 PM

Brett -- Maybe you missed it when I responded to your comment on the definition of "arms" earlier in the thread? I said:
----------
I can't find any definitions that limit the term "arms" to the kinds of personal weapons that individual soldiers carry. American Hertiage specifically says: "A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms." I think what you're describing is usually referred to as "small arms."

That said, if you wanted to make an Original Intent argument you might say that the writers of the bill didn't have a conception of "arms" that extended beyond field artillery, so their meaning of the term is restricted to small arms and field artillery and doesn't include jet fighters and nukes. But that's a pretty slippery slope, since there's an awful lot of other modern stuff they didn't concieve of that we think they did intend to protect.
----------
I'm not making my claim about nukes as a straw man strategy to argue in favor of gun control -- by a lot of definitions I'm opposed to gun control. And I'm certainly not arguing against your position on gun control -- I don't even know what your position is, so for all I know we agree. I'm saying that we always end up resting the gun control debate on interpretation of the Second Amendment and that both sides are totally wrong in that interpretation. The pro gun control side misinterprets the part about militias in order to be able to impose more restrictions, and the gun rights side conveniently ignores the fact that the law as it stands allows for nukes. To be clear, I'm not saying that either side is being dishonest, but rather that each is wrong in their interpretation.

Posted by Galen | July 25, 2007 5:09 PM

Re: Really? Not even Thomas Jefferson? He is said to have said

Jefferson had no part in writing the Constitution or the Bill of Rights. He was in Paris at the time. And even he, in his later years, disavowed such intemperate sentiments. During the uproar over the Missouri Compromise he was quite alarmed that the country might break up violently.

Re: And for the founders, the most recent war in memory in fact had relied heavily, especially at the beginning, on militias to throw off the yoke of the oppressive British regime.

Perceived by then as a foreign force, much as if the Spanish had invaded. The govermment in London (which allowed no colonial partcipation) was alien by then.

Re:

Um, don't forget federalism and the rights of the states vis-a-vis the federal govermment. The amendment is about allowing the states to maintain their own militias so the federal governmment would not have a monopoly of military force, and would not need to maintain a large standing army, something the Founders dreaded, both because a would-be despot might use that army to overthgrow the Constitution and because a large army might tempt the nation into feckless foreign adventures and entanglements. In a sense your point has some validity, but only in the sense that the militias were intended to prevent excess militarism and its temptations at the federal level, not cure it should it come to pass. Even in 1787 that would have been difficult or impossible, as the CSA learned to its great cost seventy some years later. Ultimately though the right to bear arms is tied to the rights of the states to organize armed militias. You simply cannot ignore that connection; it's right there in the words. Arms bearers are supposeed to be part of a militia. Note that the amendment never prevented the disarming of outlaws, Indians, slaves and even free Blacks. Unlike most of the rest of the Bill of Rights, this right did not adhere in the fact personhood itself, but in the specific duties of citizenship, more like the right to vote than the right to free speech.

Posted by JonF | July 25, 2007 8:15 PM

The reason that the Second Amendment has the worst prose in the Bill of Rights -- really, it sticks out like a sore thumb -- is because it's meant to satisfy the very different state attitudes towards regulation of the militia, as made clear by the state constitutions at the time. (NY or NJ, for instance, have never had a right-to-bear-arms clause in their state constitutions.)

It's a classic fudge, a work-by-committee, and I'm betting that the eighteenth-century Bretts and Galens believed it said what they thought it said, but each could sleep soundly knowing they were right.

Don't confuse arguments about what the Constitution ought to say, with arguments about what it does say.

Ah. A classic line, which sounds good, but really doesn't mean anything.

Posted by pseudonymous in nc | July 26, 2007 2:34 AM

No, it does mean something: The amendment says "right of the People", so stop trying to parse it until it's limited to some smaller group the government can contract or abolish at will, or constitutes something nobody would have refered to as a "right".

Posted by Brett Bellmore | July 26, 2007 6:51 AM

The Federalism Dodge

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