Constitutional Basics

[Brownstone322]

I don't want this to be a touchy topic. I just want a feel for what other people experience in their own circles.

Do you occasionally (or frequently, for that matter) encounter people who don't, in a fundamental way, understand what the Constitution is and isn't? Here's why I ask.

• A while back, I had an acquaintance of mine publicly calling out a local eating establishment for having posted a sign saying that firearms were not permitted therein. He said he'd take his business elsewhere (which is fine), but that wasn't all: He insisted that this establishment was in violation of (you guessed it) the Second Amendment and that "it's only a matter of time until there's a lawsuit."

• More recently, I saw a link to a story on Facebook regarding an apartment complex in Northern New Jersey that banned firearms. Same thing: A bevy of readers were apoplectic, insisting that the property owner was "in violation of the Second Amendment."

These are just a couple examples. I see this kinda thing from time to time. Too often, actually.

So, back to what the Constitution is and does (short-short version):

1. It sets up a federal government and defines some basic procedures of operation.

2. It defines the government's powers.

3. Here and there, it specifies certain things that the government must do.

4. And, mostly in the Bill of Rights, it defines specific things the government cannot do.

In other words, what we think of as "Constitutional rights" might better be described as "limitations on the power of government."

So to rephrase my question: Do you encounter people who do not understand all this? And why do you think that is?

Back to the examples above, regarding a restaurant and an apartment building restricting firearms. These are not Constitutional issues. But lots of people seem to think they are. In fact, they'll argue that point vehemently, using clichés such as "which part of 'shall not be infringed' do you not understand, moron?" (By the way, these same issues might in fact be addressed under statutory or contract law, but, again, those have nothing to do with the Constitution.)

In other words, I think there's a subculture that somehow thinks that the Second Amendment is pervasive and protects us from restrictions from anyone, anywhere, anytime. (Some people believe the same about free-speech guarantees under the First Amendment.) The notion that Constitutional rights refer to the relationship between people and government is utterly foreign to them, and they'll go so far as to call you a fool for pointing it out.

Any thoughts? I have some ideas as to where this misguided thinking might come from, but I'd like to hear what others might say.

 

[zukiphile]

Hugo Black exaggerated only slightly when he noted,

The layman's constitutional view is that what he likes is constitutional and that which he doesn't like is unconstitutional.

Lawyers can make this worse by making explanations of constitutional law so opaque that many laymen lose interest, and make it even worse again by developing constitutional case law with a tenuous relationship to constitutional text. If there is a body of jurisprudence that discovers fundamental rights in penumbra, the area starts to look more like the vision of Black's layman.

 

[44 AMP]

Yes, I have met some of those, and your analysis is pretty spot on.

Where does it come from??
#1) some people are basically stupid (yes, that is intentional sarcasm)

#2) I think primarily its the same educational system that teaches all kinds of things that are incorrect, and doesn't ensure everyone understands what actually IS correct. This, and constant unceasing repetition of in correct terms and usages in our media.

For example, the United States is NOT a democracy. Yet nearly everything thinks we are. (or should be)

You are entirely correct that the Bill of Rights is NOT a grantor of human rights, it is a list of restrictions on government actions. Period.

Misleading or actually incorrect terminology seems to be the way our government and our society operates these days...

it is absolutely the way they get laws passed...a good sounding title, then the actual law does something else...

 

[JN01]

Hell, there are some Congressmen that don't understand the Constitution.

 

[Pahoo]

Talking heads

He insisted that this establishment was in violation of (you guessed it) the Second Amendment and that "it's only a matter of time until there's a lawsuit."

No violations here and no grounds for a lawsuit. Most of the prole I deal with, have never read the constitution. I would even guess that most folks have read the Bible more than "Our Sovereign US Constitution. A business owner has as much legal right to post his property as I have to carry, if I wish to do so. …..

I find that most TV-Talking heads know little or noting about firearms and yet they report as if they do. I guess they do a good sell to the uninformed and only confuse the issue. …..


Years ago, I took an oath to defend and protect the Constitution. Many public servants have take the same oath and openly violate that it.


Be Safe!!!

 

[5whiskey]

It's so common it's really not funny, but instead scary. Someone tried to convince me that it was unconstitutional to ask donations from co-workers for a religious charity at a government workplace. Or one of my favorites I've heard... it is unconstitutional for private businesses to share records with law enforcement, even pursuant to a legal process. Hell I've had a cop that tried to convince me of the last one. I couldn't bear that conversation and had to walk away.

Years ago, I took an oath to defend and protect the Constitution. Many public servants have take the same oath and openly violate that it.

That is the truth sir.

 

[Aguila Blanca]

So to rephrase my question: Do you encounter people who do not understand all this? And why do you think that is?

All the time.

When I went to junior high school in the late 1950s, the basics of the Constitution were taught in 7th and/or 8th grade Social Studies class. I think that part of the curriculum has long since been replaced by something more "important," like underwater basket weaving.

 

[rickyrick]

We were taught the constitution up, down, left, right and up and down in high school.
Don’t remember the details anymore lol, but I see clearer now why the bill of rights exists.

I see it as a guide to limit the powers of government, but also recognizes that government needs some power to function. I also believe it allows for the unknown, the unknown for the founders and for us here in modern time.

I don’t really think that the constitution is being followed as it should be; but that’s not a topic for now.

 

[natman]

Hell, there are some Congressmen that don't understand the Constitution.

Here's a quote from mine:

[Jared] Huffman asked if anyone knew the first words of the Second Amendment. The response from several students was a simultaneous recitation of the phrase, “A well-regulated militia.”

“‘Regulated,’” repeated Huffman. “The Founding Fathers were in favor of some sensible regulation. That’s all we want. Just what the Second Amendment already calls for.” https://pacificsun.com/upfront-enough/

It's hard to argue against that level of constitutional scholarship.

 

[FITASC]

So to rephrase my question: Do you encounter people who do not understand all this? And why do you think that is?

Because the folks in charge of the public education system since LBJ's Great Society have avoided teaching accurate history or civics.

 

[Aguila Blanca]

Here's a quote from mine:

[Jared] Huffman asked if anyone knew the first words of the Second Amendment. The response from several students was a simultaneous recitation of the phrase, “A well-regulated militia.”

“‘Regulated,’” repeated Huffman. “The Founding Fathers were in favor of some sensible regulation. That’s all we want. Just what the Second Amendment already calls for.” https://pacificsun.com/upfront-enough/

It's hard to argue against that level of constitutional scholarship.

That's not just a failure of constitutional scholarship, that's a failure of Vocabulary 101.

 

[44 AMP]

That's not just a failure of constitutional scholarship, that's a failure of Vocabulary 101.

ABSOLUTELY!

In the 1700s the phrase "well regulated" had little or nothing to do with laws or regulations on paper. It meant "in proper working order".

A well regulated clock was one that kept proper time, not gaining or losing any.

A well regulated militia mean one where the members had all their basic survival gear (bedroll, mess gear, canteen, etc) basic arm and a quantity of ammo, and knew the rudiments of military drill.

The term still survives intact in the gun making trade, guns are "regulated" to their sights, double rifles have their barrels regulated to hit the same point at a given distance. In other words, in proper working order.


Because the English language allows for multiple, and sometimes widely different definitions of words dependent on context, it is fairly simple for someone to lie, but sound like they are telling the truth.


Particularly when politicians and lawyers spend time and effort arguing what the meaning of the word "is" …..is.

 

[Wag]

In the 1700s the phrase "well regulated" had little or nothing to do with laws or regulations on paper. It meant "in proper working order".

A well regulated clock was one that kept proper time, not gaining or losing any.

A well regulated militia mean one where the members had all their basic survival gear (bedroll, mess gear, canteen, etc) basic arm and a quantity of ammo, and knew the rudiments of military drill.

Best articulation of that concept I've ever seen.

As to the OP, I run into that all the time, particularly with both of the first two amendments. Most of the rest of The Constitution and Bill of Rights is completely beyond the comprehension of most people these days. Sometimes I'm not even sure I really get it down pat, but I try......

--Wag--

 

[Brownstone322]

As I suspected might happen, I think this thread has kinda meandered off the tracks. (But don't they always? I'll do it too.)

Here's a link to the New Jersey story about no guns on the property. If you scan the reader comments, you're guaranteed to see references to the Second Amendment. Shocker.

https://www.ammoland.com/2018/05/housing-developer-bans-guns-in-rental-properties/#axzz5YGjnxS3v

My original point was that, in my admittedly unscientific experiences, a lot of people seem to overestimate what constitutional rights actually are. Central to this, I think, are two issues:

1. Some people do a poor job of discriminating between rights defined by statutory law and those defined by constitutional law.

2. In the narrower context of firearms laws, some (maybe most) people don't understand the difference "gun rights" (statutory) and "constitutional rights" (Second Amendment).

—

As to the first point, I think my own schools did a good job of explaining how American government functions, but a mixed job of explaining the scope of the Bill of Rights. Where I went to schools (in Virginia), we first studied the establishment of the federal government in middle school, where we were introduced to separation of powers, checks and balances and the bicameral legislature that compromised power between large populous states and rural states. Well done. But they taught the Bill of Rights in a more-idealistic sense: Look at these wonderful guaranteed rights we have as Americans!

While I don't disagree with the fundamental goodness of enumerated rights (I am more of a civil libertarian than anyone I know), as I recall things, they did a lax job of stating this: "These freedoms are purely restrictions on the powers of government, and that serves to protect us all. Just don't assume you have freedom of anything when you're among private citizens or organizations."

So later, as high-school seniors, we all took a full year of U.S. government, which is required by law in Virginia. We studied all the same things as in middle school, only for longer and in more depth and detail. But the application of constitutional rights — when they do and don’t apply — still wasn't emphasized the way I later believed it should have been.

Still later, in college, I took U.S. Government and Politics as a freshman, and even later I took two semesters of busness/commercial law. Only at that level did they make clear what "rights" really do and do not mean. I'll be honest, as a 17-year-old, I dunno if I would have articulated "constitutional rights" as "restrictions on the powers of government"; but I do now, and everyone, I believe, should as well. But I know for a fact that a loud contingent does not get this.

Of course we have additional rights beyond those defined by the Constitution (lots of them), but these are defined by statutory law (local/state/federal), and they apply however the law says they apply. Different thing entirely.

—

As to the second point -- and these are related -- these same folks don't seem to understand the difference between gun rights defined in the Second Amendment (which is interpreted by the federal judiciary) and those defined under statutory law (which is at the relative whims of legislatures and executives). Statutory law is subject to judicial review, of course, but … it usually isn't.

Here's why this matters: Evidence suggests that most gun-control laws are, as far as we know, in fact constitutional, that is, they do not violate the infringement clause of the Second Amendment. How do we know this? Because we have thousands of gun laws at the federal, state and local levels in this nation, and over the past 200-odd years the federal judiciary has shown little interest in nullifying them.

This isn't my opinion; this is just reality. And it's an important reality.

Lemme put it another way. In Virginia, my gun rights are fairly broad, much more so than in nearby Maryland or in far-off California, but less so, I think, than in neighboring West Virginia. But note this: My Second Amendment rights are exactly the same in all those places (or in any of the 50 states), vast differences among state laws notwithstanding.

To me, this should be clear enough to everyone, but I know it's not, as evidenced by the incessant references to laws or lawmakers as being "pro-Second Amendment" or "anti-Second Amendment," as if interpretation of the Constitution is subject to political trade winds. The Constitution isn't a legislative matter, nor an executive one. (Before someone tries to lecture me on basic civics, I am aware that the president and the U.S. Senate have the power to structure the judiciary, but it's still an indirect connection. Do you really think Ronald Reagan understood that Antonin Scalia would uphold the right to burn the U.S. flag in protest? Judges will ultimately go their own ways.)

Again, I don’t think the educational system has adequately addressed these distinctions. But what’s worse (and this isn’t intended to be controversial either), I think political organizations have done everything to exacerbate the ignorance. The NRA (and the Gun Owners of America and the Firearms Policy Coalition and no doubt others) like to refer to all gun-rights issues as "Second Amendment" issues, shamelessly conflating statutory law with constitutional law. (How many times have you seen a politician lauded or derided as "pro/anti-Second Amendment?" Again, this confuses policy positions with constitutional rights. The mindset is important.) I think the NRA and its allies have helped breed legions of government illiterates, people who embrace terms such as "constitutional carry," as if that’s an actual thing. (It’s a belief, sure, but so is Bigfoot.)

On the other side of the political coin, of course, they make no attempt to understand firearms or their owners, and their rhetoric is equally ignorant. (I mean, the preoccupation with "assault weapons"? Really?) And whereas pro-gun-rights advocates consistently overstate the established reach of the Second Amendment, anti-gun advocates simply pretend the amendment does not exist at all.

So here we are. Feel my frustrations.

 

[Pahoo]

Choices

For the benefit of us who do not fully understand all elements of our Constitution; especially the Second Amendment. Let me recommend a good resource. ….

The Second Amendment Primer; By Les Adams, from Odysseus Editions.


Again, everyone and every business has the legal right to post ""Any" sign they want, on their front doors. You also have a legal right to carry if you have a CCW. At any given point in time, we only have two choices and all choices have consequence. When you walk up to that posted door, you have two choices and your call to make. ……

Be Safe !!!

 

[44 AMP]

Here's why this matters: Evidence suggests that most gun-control laws are, as far as we know, in fact constitutional, that is, they do not violate the infringement clause of the Second Amendment. How do we know this? Because we have thousands of gun laws at the federal, state and local levels in this nation, and over the past 200-odd years the federal judiciary has shown little interest in nullifying them.

There is a difference between what we do, don't do. or allow to be done in practice and what is the political ideal. Just because the govt shows little interest in correcting a situation doesn't mean that situation is good, just, and proper. Nor does it mean that it is not a violation of the philosophical ideal.

For those who feel ANY and every regulation is "infringement" then all our gun control laws are unconstitutional in their point of view.

However, if you hold the view that as long as you can possess some kind of arm, (with background checks, proper licensing, etc) as long as you can do that, then your "constitutional right" is not being infringed.

So, any and all restrictions, short of a complete outright ban, is, to them, not an infringement.

Look at some of the language in Heller, particularly the portion about how other gun control laws are "presumptively legal". What some of us believe they meant was "we're not looking at those laws right now, so we will presume them legal, until we do..."

But what a number of people heard was "gun control is legal".

More than a little bit of difference, and sadly, the High Court is under no compulsion to ensure other people interpret their language the same way they do. When there is a disagreement on their rulings, they expect it to be brought before them in another case, so they can rule again. IF they choose to hear the case...and after it works its way through lower court for several years....


As to "no gun" signs vs. our constitutional right to carry (bear arms), the people whining about their rights being violated are missing the basic underlying principle that those rights are a contract between we, the people (as individuals) and the government. NOT between one citizen and another.

Property owners have rights, and your right to ccw does not override their rights.

Likewise, your boss can tell you that you cannot advocate for your political views at work. This is NOT a violation of your right to free speech.
If it were the government telling you that, it would be, but a private citizen, setting their own rules for their private property isn't.

(yes there are some legal modifiers if your "private" property is open to the public, such as a retail business, but the basic principles still hold)

 

[Bartholomew Roberts]

Originally Posted by natman
Here's a quote from mine:

[Jared] Huffman asked if anyone knew the first words of the Second Amendment. The response from several students was a simultaneous recitation of the phrase, “A well-regulated militia.”

“‘Regulated,’” repeated Huffman. “The Founding Fathers were in favor of some sensible regulation. That’s all we want. Just what the Second Amendment already calls for.”

I’d like to say that is shockingly ignorant for a Congressman; but the cynic in me suspects it isn’t unusual.

For someone to believe that when writing the Bill of Rights, the founders were concerned that the federal government wouldn’t be able to legislate militias, so they wrote an amendment (in a list of other amendments that all restrict the federal government) to guarantee they could regulate it...

 

[Brownstone322]

Look at some of the language in Heller, particularly the portion about how other gun control laws are "presumptively legal". What some of us believe they meant was "we're not looking at those laws right now, so we will presume them legal, until we do..."

But what a number of people heard was "gun control is legal".

More than a little bit of difference, and sadly, the High Court is under no compulsion to ensure other people interpret their language the same way they do. When there is a disagreement on their rulings, they expect it to be brought before them in another case, so they can rule again. IF they choose to hear the case...and after it works its way through lower court for several years....

I agree with you, and you'll note that I included the qualifier "as far as we know," because it's the best we can do for the moment. And de facto law matters, because it's the new common law: The myriad gun-control restrictions we have now are valid law until a federal court says otherwise, and the federal courts simply haven't had much to say over the decades. This is an important point that at least hints as to constitutionality. (But we shall yet see, of course.)

As for Heller, that ruling (like most Supreme Court rulings) was narrow in scope. It applied to owning firearms and keeping them in our homes, which was the basis for Dick Heller's original suit. But the ruling also hinted that the court might not be hostile to various extant restrictions, including the background-check system, restrictions on possessing weapons in sensitive places, restrictions on concealed carry and restrictions on "dangerous and unusual weapons." Those who claim "all gun control is unconstitutional" are misguided and are simply making it up. Scalia could not have been more clear or direct on this one point: "Like most rights, the Second Amendment right is not unlimited."

The rank and file of gun-rights advocates (and I am among them) need to learn this. Sometimes I am actually embarrassed to be on the side of gun-owner rights, in great part because of popular pro-gun rhetoric that, to me, is ignorant if not outright idiotic. (And as I mentioned before, I think the NRA and other organizations are culpable in driving certain false narratives.)

But back to Heller. With the basic right of individual ownership affirmed, I think the most interesting (and optimistic) aspect of that ruling was the reaffirmation of the test for protected arms as "those in common use for lawful purposes." (I believe this criterion was first described in United States v. Miller in 1939.) One would think that this doctrine would ultimately bring about the downfall of state restrictions "assault weapons" or "high-capacity magazines," which are beyond question commonly used in a legal way. But again, we shall see.

 

[Aguila Blanca]

My original point was that, in my admittedly unscientific experiences, a lot of people seem to overestimate what constitutional rights actually are. Central to this, I think, are two issues:

1. Some people do a poor job of discriminating between rights defined by statutory law and those defined by constitutional law.

2. In the narrower context of firearms laws, some (maybe most) people don't understand the difference "gun rights" (statutory) and "constitutional rights" (Second Amendment).

Statutes generally don't establish rights -- they establish wrongs. As a rule, statutes set forth that which is illegal, and the basic rule is that if it isn't prohibited in statute ... it's legal.

I don't think there's any such thing as a "gun right" in statute.

Here's why this matters: Evidence suggests that most gun-control laws are, as far as we know, in fact constitutional, that is, they do not violate the infringement clause of the Second Amendment. How do we know this? Because we have thousands of gun laws at the federal, state and local levels in this nation, and over the past 200-odd years the federal judiciary has shown little interest in nullifying them.

The fact that most of those laws haven't been ruled unconstitutional doesn't automatically make them constitutional. It leaves them untested. I can't agree that this offers any "evidence" that all these untested laws are constitutional. As we have seen in recent years (post-Heller), a lot of cases that are sent to the Supreme Court have not been granted certiorari, which leaves the laws involved untested at the final level. Why have these cases not been accepted? My personal view is that the SCOTUS is so delicately balanced that neither the pro-2A faction or the anti-2A faction dares take a case because they don't want the precedent that would be established if they lose. So they prefer to leave the issue undecided.

As for Heller, that ruling (like most Supreme Court rulings) was narrow in scope. It applied to owning firearms and keeping them in our homes, which was the basis for Dick Heller's original suit. But the ruling also hinted that the court might not be hostile to various extant restrictions, including the background-check system, restrictions on possessing weapons in sensitive places, restrictions on concealed carry and restrictions on "dangerous and unusual weapons." Those who claim "all gun control is unconstitutional" are misguided and are simply making it up. Scalia could not have been more clear or direct on this one point: "Like most rights, the Second Amendment right is not unlimited."

But Mr. Scalia didn't make any attempt to define where those limits lie -- that's what was supposed to be decided by future cases. And if a future case comes before a Supreme Court with a clear majority of textualists, the result might very possible be that the SCOTUS will return to a proper understanding/interpretation of "infringe." Regulation IS infringement. The argument that "felons shouldn't be allowed to own guns" is a non sequitur. When someone is convicted of a felony, certain civil rights are forfeited. The right to possess firearms is one -- the right to vote is another. We can argue about whether or not civil rights should be automatically restored upon completion of the sentence (plus any probation, which is part of the sentence), but even I don't see the prohibition against convicts being allowed to possess firearms in prison as being a constitutional issue. That's not a violation of any constitutional right, because their constitutional rights have been stripped from them by virtue of their conviction.

 

[5whiskey]

As an aside there are some posters here that I really enjoy reading from. AB and zukiphile are among them. Brownstone i can add you to the list I think.