What Kind of People We Are
isomin at gmu.edu
Tue Apr 17 22:41:57 PDT 2007
First of all, I'm not sure that originalists are necessarily committed to the idea that the concept of "cruel and unusual" is static. At the very least, the "unusual" part could easily be said to evolve because what is "unusual" depends in part on actual practice. Thus, flogging was not unusual in 1790, but surely is today.
Second, it is not the "concept of arms" that evolves over time, but rather the range of technologies that fit the concept. The word could have the same meaning in 1790 as it did today, but the range of objects that fit the meaning could expand.
Third, there is an obvious difference between the Eighth Amendment and the Second that might suggest more room for technology-driven evolution with respect to the latter. Setting aside the word "unusual," "cruelty" is a moral concept, not an empirical or technological one. By contrast, "arms" is a functional or technological category. Quite likely, that is the way that people understood the two terms at the time of the Founding. One has moral content, while the other does not, and primarily refers to a technological function that is subject to the vagaries of technical advancements. Part of being an originalist is interpreting the text in the way that it would have been understood at the time of ratification.
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
e-mail: isomin at gmu.edu
SSRN Page: http://ssrn.com/author=333339
----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
Date: Wednesday, April 18, 2007 1:14 am
Subject: RE: RE: What Kind of People We Are
> I will admit that I am not sure what the standard originalist
> account of the Second Amendment is, but I am pretty sure that the
> standard originalist account of the Eighth Amendment rejects any
> evolving content to the prohibition on "cruel and unusual
> punishments." Under Professor Somin's account of the Eighth
> Amendment, which he tells us is originalist, then the conception
> of "arms" evolves over time even though most originalists tell us
> that the conception of "cruel and unusual punishment" does not.
> Why? Of course, you could say that both terms evolve, but if that
> is the case, then, as Justice Scalia argued (as he rejected an
> evolving understanding of "cruel and unusual in "A Matter of
> Interpretation"), there is no real difference between originalism
> and nonoriginalism. And if that is so, there is no reason to
> prefer an originalist interpretation of the Second Amendment to,
> say, a pragmatic interpretation that might vindicate a broad
> police power or even adopt a collective rights approach if it were
> thought to lead to more optimal results. If, on the other hand,
> to avoid the perceived evils of pragmatism we hew to an
> originalist interpretation yet conclude that the term "arms"
> evolves but the phrase "cruel and unusual" does not, why the
> difference in interpretative approach?
> Larry Rosenthal
> Chapman University School of Law
> From: Ilya Somin [mailto:isomin at gmu.edu]
> Sent: Tue 4/17/2007 9:26 PM
> To: Rosenthal, Lawrence
> Cc: ConLaw Prof
> Subject: Re: RE: What Kind of People We Are
> This is a question that has troubled me as well. I wrote a blog
> post about it on the Volokh Conspiracy a few weeks ago, entitled
> "What Kinds of Arms Do We have a Right to Bear."
> It seems to me that advocates of the individual rights view of the
> Second Amendment (which I'm generally sympathetic to) have yet to
> come up with a coherent and convincing answer to the question. As
> I noted in the post, the problem is exacerbated by the
> implications of the insurrectionary theory of the Amendment.
> Here's the relevant part of VC post:
> [T]e implicit assumption that regulations banning private
> ownership of RPGs and Stingers are "reasonable" [and therefore
> constitutional under the individual rights view of the amendment]
> is in tension with the theory that the principal purpose of the
> Second Amendment is to give citizens the ability to use their
> weapons to resist a tyrannical government . . . Obviously, RPGs,
> handheld SAMs, and machine guns are likely to be far more
> effective in achieving this goal than mere handguns or hunting
> rifles. The insurrectionary theory of the Amendment is at odds
> with most arguments claiming that the Amendment only protects the
> right to own weapons that don't pose grave risks. After all, the
> most dangerous weapons are often the ones that can most
> effectively be utilized by a resistance movement . . . .
> [End post excerpt]
> At the same time, I don't think, as Larry Rosenthal seems to
> assume, that a consistent originalist is committed to the view
> that "arms" means only those arms available in 1787 or 1791. The
> text says "arms" without any temporal or technological limitation.
> Moreover, as a matter of original meaning, the Framers and
> ratifiers of the 18th century were surely aware that the
> technology of weapons had evolved over time and would likely
> continue to do so in the future. Thus, we should assume that if
> they had wanted to limit the right to bear arms to muskets,
> swords, and other weapons available at the time, they would have
> done so explicitly in the text, or at least left some record of
> this intention in the ratification debates or other contemporary
> records. Of course, I'm no expert on the Founding, and it is
> possible that some such records exist without my knowing about
> them. If so, I welcome correction on this point from the Second
> Amendment experts on the list.
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> ----- Original Message -----
> From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
> Date: Wednesday, April 18, 2007 0:03 am
> Subject: RE: What Kind of People We Are
> > In recent years, many have come to support an interpretation the
> > Second Amendment that secures individual and not merely collective
> > rights, but I will confess that I do not understand how an
> > individual rights interpretation would work. It is pretty clear
> > to me that the individual rights camp would not be satisfied by
> > protecting the right to bear only those "arms" with known military
> > applications at the time of ratification. Instead, as far as I
> > can tell, the individual rights camp combines original meaning
> > interpretivism with a kind of living constitutionalism that would
> > protect the right to "bear" new types of "arms" with significantly
> > different characteristics that those "arms" known at ratification.
> > For those individual-rights advocates out there, I would be
> > curious to know what you believe the Second Amendment protects.
> > Is its protection limited to those who "bear" flintlock rifles and
> > other "arms" known at the time of framing and ratification, or
> > does it also protect the right to "bear" machineguns, rocket
> > propelled grenades, mortars that fire chemical-weapons shells, or
> > suitcase-sized nuclear devices? Can convicted felons, members of
> > terrorist organizations, or anyone else, be forbidden to purchase
> > or possess arms? Are all concealed carry laws unconstitutional?
> > Are all registration laws unconstitutional? In short, what are
> > the mechanics of an individual-rights view of the Second Amendment?
> > Larry Rosenthal
> > Chapman University School of Law
> > ________________________________
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Steven Jamar
> > Sent: Tue 4/17/2007 7:56 PM
> > To: ConLaw Prof
> > Subject: Re: What Kind of People We Are
> > 1. Defending a free state is done by the well regulated militia,
> > not individuals with high rate of fire pistols which hold large
> > numbers of bullets. The "therefore" seems targeted explicitly at
> > making the militia a part of the state's ability to defend its
> > freedom and that of its citizens.
> > 2. Fewer people would have died had the killer only had a
> > Or a baseball bat. Or a six-shooter. Or a shotgun. Other than a
> > gatling gun shotgun, shotguns do not fire nearly as quickly as
> > modern pistols and hold only six shells at a time (three if set
> > for hunting in most states). A rifle may be deadlier in some
> > sense, but at close range it is less easily aimed or maneuvered.
> > Banning certain types of weapons, certain types of ammunition, and
> > controlling rate of fire (real controls) would not stop mass
> > murders, but would limit the number of victims in cases like this
> > and would save lives.
> > Of course, the number of people killed on highways every day
> > vastly exceeds the numbers killed by other kinds of violence of
> > all types. But these pointed traumatic incidents, like plane
> > crashes, carry much more impact.
> > I don't think the second amendment does anything positive in the
> > modern USA. At all. My shotgun won't do much against military
> > weapons. Nor will all the shotguns in the country combined.
> > But I regretfully agree that the 2d amendment is there and means
> > something and that the abuse of weapons is not something that
> > really adds meaningfully to the debate of what it means.
> > It is the one provision on which I am would buy a Thomasan
> > originalist argument -- let everyone who wants to assert his or
> > her right to bear arms bear only arms of the type available when
> > the amendment was enacted. Before the revolver. Before the
> > repeating rifle. Before bullets in magazines and clips. Muskets.
> > That's the ticket. Preferably muzzle-loaded and pan flash fired.
> > Steve
> > Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> > > Two thoughts:
> > >
> > > (1) 44 of the state constitutions have right-to-
> > > provisions. Virginia's reads, in relevant part, "That a
> well> regulated > militia, composed of the body of the people,
> trained> to arms, is the
> > > proper, natural, and safe defense of a free state,
> therefore,> the right
> > > of the people to keep and bear arms shall not be infringed";
> > but note
> > > that the last clause, starting "therefore," was added in
> > It's > hard for me to see how such a provision in a state bill of
> > rights, > enacted in 1971, "has to do with government
> sponsored,> government > protective militias."
> > >
> > > (2) It's hard to see what gun control measure would
> > prevent a
> > > mass murderer from engaging in mass murder. A handgun
> > That would
> > > leave rifles and shotguns, which are more deadly than
> handguns.> A ban
> > > on noncitizens' owning guns? It seems only an accident
> that this
> > > particular killer was a noncitizen. A ban on all guns,
> coupled> with > confiscation of the 200+ million guns out there
> in private
> > hands. If
> > > there's to be an argument in favor of reading the Second
> > Amendment as
> > > protecting states' rights, or the rights of state-selected
> > armed groups,
> > > I just don't see how an argument based on this
> particular crime
> > would > cut it.
> > >
> > > Eugene
> > --
> > Prof. Steven D. Jamar vox: 202-
> > Howard University School of Law fax: 202-
> > 2900 Van Ness Street NW
> mailto:stevenjamar at gmail.com> Washington, DC 20008
> > "I am in Birmingham because injustice is here. . . . Injustice
> > anywhere is a threat to justice everywhere."
> > Martin Luther King, Jr., (1963)
> > _______________________________________________
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