The rule of law

Is a familiar concept but also a page-turning pot-boiler by Thomas "just call me Tom" Bingham, which I'm in the middle of reading1. And there is much to be said upon the subject, including the need for clarity; but my attention was drawn to two clauses in his "history of" section, where he includes the USAnian Bill of Rights aka the first ten amendments to their constitution. Which are

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof


the right of the people to keep and bear Arms, shall not be infringed3

The first is negative: Congress is prohibited from making laws. The second is positive: a "right" of the people is declared. The asymmetry is curious4. Is it even deliberate? The framers were, I think, attempting some literary quality; they may have felt uncomfortable about repeating themselves; but "Congress shall make no law respecting keeping and bearing Arms" would be a coherent alternative text. Would it make a difference? Perhaps; it would keep the tricky word "right" out. If you (like me) like the concept of the constitution as bounding the power of the state, then the form forbidding it to do stuff is preferrable.


* Is It Time to Start Dismissing ‘Economics Deniers’?
* Theses towards a left ideology
* James M. Buchanan ”From the Inside Looking Out” quote via CH
* Hayek vs Hobbes and the theory of law
* Renewables XIX – Behind the Executive Summary and Reality vs Dreams - SoD.


1. In the middle of, not finished, obviously. Don't cramp my style.

2. I am, of course, interested in freedom of speech, but don't need it for these points.

3. I've elided the controversial and hard-to-interpret preceding clause that is either decorative or function, according to your tastes, because it isn't relevant here. Since the whole thing is controversial I shall offer you my own opinion: that the "right" made sense when written but doesn't make sense with modern weaponry or society; the legal gymnastics that courts go through to try to make sense of it without too obvious inconsistency are unconvincing. Bear in mind though that this isn't the point of this post.

4. I'm sure others must have remarked upon it; not being any scholar of such things I'm not aware of the discussion; do point me at relevant bits. The WaPo seems to me to blithely ignore the difference;

More like this

“Congress shall make no law respecting keeping and bearing Arms”
Wouldn't this mean something like a presidential order banning sale to ordinary individuals without a licence might be made and Congress would then be powerless to change the situation?

[Only if you believe similar concerning religion. Given recent court rulings that seems unlikely -W]

I've noticed that those on the nutbag right like to leave off the first two clauses of the sentence constituting the Second Amendment:

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.

The "well-regulated" part makes it clear that that right is hardly unlimited. It also implies that the need for such a militia, which was obvious in the early days of the republic, is the justification for such a right. Such militia's are largely obsolete in the days of huge professional armies armed with weapons of almost incalculable power.

[Sigh. As you know, that interpretation is possible, but not certain -W]

#1. - a presidential order banning sale

A President could so order, and that would have no more or less legal significance that a papal edict or a declaration from Hoppy the Clown. Making regulations is not a power of the Presidency, except where the Congress has so permitted. Presidents have some leeway in the interpretation of laws, but none in making them.

CIP #3 ---- Consider the power of Executive Orders.

By David B. Benson (not verified) on 26 Jul 2017 #permalink

In the UK we have (under the ECHR) a right to religious freedom, but we also have an "official" state-sanctioned religion. Given that many early immigrants to America were escaping religious persecution I think it's understandable that the authors of the constitution wanted to specifically mandate separation of church and state.

As mentioned by CIP above, the exact intended meaning of the second amendent is of course disputed. There's an interesting piece about it's history here…

which states it was only in 2008 that the supreme court ruled that it meant the right of an individual to privately own firearms, after a sustained lobbying operation by the NRA.

Depending on which interpretation one prefers, it could be more similar in nature to the 1st amendment, or to the others which are couched in terms of individual rights.

By andrew adams (not verified) on 26 Jul 2017 #permalink

#4 - DBB,

There are two extreme examples of Executive Orders: Lincoln's Emancipation Proclamation, justified as a war major, and Truman's nationalization of the railroads, ditto, but the Supreme Court overturned Truman. After the war, Congress ratified Lincoln with constitutional amendments. In general, the courts have ruled that only executive orders authorized by the Constitution or Congress are valid. For example, Trump's decision to exclude transgenders from the military is justified by his position of Commander in Chief. Naturally there are borderline cases.

er, war measure, I meant.

Does it even matter, when the NRA is purely a sales organization using the 2nd Amendment as a shield against any possible regulation of guns? Now that they can't tell lies about Obama to drive sales, they've moved on to fear-mongering about other sectors of society.

Have you seen this video, for example?

re #5 andrew adams, surely in the UK we have at least two state-sanctioned religions, the Church of England and the Kirk of Scotland.

Both are [[national church]]es, though the former has more involvement as England's official state church, while the Kirk has kept some distance from the country's rulers.

dave s:

the [Church of England] has more involvement as England’s official state church

Thus we have 'antidisestablishmentarianism'.

By Mal Adapted (not verified) on 26 Jul 2017 #permalink

Able Bodied Men 17-45 still make up the unorganized militia in the US
Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:
Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia.[9] (Note: the National Guard is not to be confused with the National Guard of the United States.)
Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.[10]

The 2nd amendment clearly means that a militia is necessary, it is common knowledge that ordinary people make up the militia, therefore, to have a militia, people have the right to have and carry arms.

Trying to limit this or take it away is political suicide. An inconvenient truth.

Some firebrands interpret "not be infringed" as an absolute, when case law shows no other absolutes. Even those firebrands, mostly won't argue a right to own SAMs even those which can be held in the arms.

Some US states have enforced a zero sales-tax policy on newspapers, due to the first US constitutional amendment. Others have not..

[Indeed. In a practicable, workable state laws will need interpretation. Insisting on a complete literal interpretation of something written 200 years ago won't work. But that doesn't permit over-illiteral interpretation either -W]

By Russell the Stout (not verified) on 27 Jul 2017 #permalink

Laws can be enacted and repealed, constitutions can be amended and rights can be interpreted. Heck, governments can be overthrown.
If the collective will existed, a means could be found. Unfortunately, practicality and polity make this more or less impossible, now - iow, it is probably too late.
The USA has become what it now is over time and through both struggle and endeavour. A person might not like this particular Leviathan, but it is what it is. Although there are enough guns in private hands in the USA for every adult, apparently they are in the hands of only about 10% of the population (so I read, somewhere), and most of the Americans I have known have never so much as held a gun.
If the circumstance ever arose that the Government or a state felt the need to call up a civilian militia for the purses of defence, it would probably be a sign that it was already too late, and GBA...

By Fergus Brown (not verified) on 27 Jul 2017 #permalink…
In 2015, 22% of all US owned guns and 3% owned half of all guns. I think it worked out to 36% of households in that poll which was widely reported last year. Where gun ownership is highest, crime is the lowest... but correlation is not causation. However, it does indicate that gun owners are not violent nutballs. Their biggest, most dangerous weapon is the franchise that brought us Trump.

Deaths from firearms in the US (2013): 33,636 (nearly 2/3 were suicides).

Deaths from traffic accidents in the US (2013): 32,719…

Is there a cost/benefit analysis that can be applied here?

[The problem is that you've thought of a thing you don't like (gun deaths) and you've thought of a thing that might show it to be bad for another reason (cost-benefit) and so you're applying <other thing> to this situation, in order to reinforce your preconceived desired result. But that's cheating. If you think CBA is a good idea, will you apply it to GW? -W]

By Bob Loblaw (not verified) on 27 Jul 2017 #permalink


I also don't like car deaths, but I was intrigued by the similarity in statistics - and the dissimilarity in people's attitude towards them. People don't seem to get as emotional about car deaths, and they sure don't run around saying "if you force us to license cars, the next step is to ban them altogether". (Licensing is really a lefty plot to ban pick-up trucks and dogs.)

If cars didn't kill people off a few at a time year-'round, but instead went a full year with no deaths and then suddenly killed off a city of 33,000 people in one huge event, would people's perception of the risk or cost change? Or the benefit?

It would be nice if the only deaths were after long, comfortable lives, but that's a pipedream.. And, yes, global warming is an appropriate subject for CBA.

...but I am more intrigued at how rapidly you seemed to jumped to a conclusion as to my motives for posting those statistics. Did you think it was anti-gun because I put those numbers first? Would you have assumed it was anti-car if I had switched the order? Or are you just jumping to the conclusion that I want "more regulation"?

By Bob Loblaw (not verified) on 27 Jul 2017 #permalink

P.S. I was also saddened to see how many of the gun deaths were suicides. Having lost close ones to suicide, I know they'll find a way if they really want to, but I didn't know that suicides were such a large proportion of gun deaths in the US. I also thought accidental shootings would be higher - they're pretty small. (Follow the link.)

By Bob Loblaw (not verified) on 27 Jul 2017 #permalink

Deaths from traffic accidents in the US (2013): 32,719
Is there a cost/benefit analysis that can be applied here?

Is the CBA of convert to electric self driving cars compared to throwing them up into space?

[:-) -w]

Howard, can you point me to the scientific papers that show this supposed inverse correlation between gun ownership and crime (by region)? And for good measure, just add those that show the opposite, too. You'll find your claim is very poorly supported by the literature.

Bob Loblaw
Deaths from firearms in the US (2013): 33,636 (nearly 2/3 were suicides).P.S. I was also saddened to see how many of the gun deaths were suicides.
Never seen the fact that people kill themselves twice as often as they kill others with guns ever mentioned.
Re the similar number of car deaths there is a significant number [often single vehicle ] of suicides by car but I would not think anywhere near as high as hat by guns.
Sad to see that euthanasia has to be practiced by these means.
Sad that the human condition is so bad for some people that they have to go that way.
While I don not like the idea of people [bad] shooting people and Australia has a much lower rate due to tougher gun laws all you do is stop people killing each other in other ways.

Marco: You are correct, when you look at the state level, violent crime per capita does correlate with gun ownership per capita.

The below study that analyzes county-level data shows that violent crime is only correlated with gun prevalence in urban locations. The study only show regression analysis for urban+rural and just urban, not just rural. Table 2 Correlation matrix shows a negative correlation between violent crime and firearm prevalence
When you unpack these studies, you find that firearm prevalence has significantly lower effects by orders of magnitude than race and income inequality

Howard, I am not sure Table 2 quite shows what you think it shows. And that last link is a bit narrow, only focusing on gun-related homicides.

Getting a little desperate for clicks here?

By Hank Roberts (not verified) on 29 Jul 2017 #permalink

I'm not sure the text supports the distinction you're trying to draw. The effect of both 1A and 2A is to constrain the state, to prohibit it from doing certain things: "Congress shall make no law"; "shall not be infringed". Most of the Bill of Rights works the same way, although 6, 10, and part of 7 do not.

[That's unusually unsubtle of you. We have some words: what they mean is important. How can we tell what they mean? Some of the words are different to some of the other words: is that deliberate, or accidental, or just a matter of style?

I think the wording of one - that explicitly creates a right - as against the other, that doesn't, but instead prohibits law-making - to be interesting. I'd be interested in pointers to any informed discussion about the distinction; or indeed, to a reasoned argument that the distinction is unimportant -W]

By Nick Barnes (not verified) on 01 Aug 2017 #permalink

Just to annoy you ;)

When will we see 'tailpipes' on cars as morally wrong? An Earth Day question…

The similarity to smoking ban in public places seems an obvious similarity to draw.…

My thoughts:

One difference between smoking and ICE cars is that it is cheaper and not essential to smoke, however electric cars are more expensive and some travel is essential. Consequently I can see reasons for such a movement not gaining much ground for the next couple of years. Fortunately it may not be much longer before electric cars are cheaper and then there is no reason for sales not to be banned in fairly short order along the same lines as smoking to protect innocent other people. Indeed Norway is already talking about banning ICE cars by 2025. If all countries did so, we might have difficulty in making enough electric cars by 2025. The more this is talked about, the more car companies will realise it is coming and prepare and the sooner it will be possible to put such a ban in place.

So morals should demand that we should talk about it to encourage it to become possible to put such a ban on sales of ICE cars in place sooner.

What is the libertarian counterargument? That we should be allowed to make decisions that deliberately harm other people?