Comment Of The Day: “From The ‘Appeal to Authority’ Files: Why Should We Care What John Paul Stevens Thinks Now?”

Enough abortion for one day: let’s  have a Comment of the Day on another unending Supreme Court controversy, the Second Amendment. Here is Jutgory’s passionate response to the post, “From The “Appeal to Authority” Files: Why Should We Care What John Paul Stevens Thinks Now?”:

So many pet peeves all wrapped into one post:

“Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms”

NO! The Bill of Rights created no rights. It identified rights upon which the government could not infringe. This is as old as the Constitution. The Federalists said, we don’t need no Bill of Rights because powers not given to the government could not be exercised (naive and idealistic. The Anti-Federalists insisted but wanted it to be clear that the enumeration of the Bill of Rights was not exhaustive of the rights we had.

Sadly, they were both wrong: we needed the Bill of Rights because government seizes power when it can, and, not only do we look at the Bill of Rights as creating rights, we look at it as delimiting the rights we have.

You are spot on about rights not being subject to need. I know many people who don’t need freedom of speech and have hardly exercised that right in a constructive way, but they have it nonetheless.

On the argument that the Second Amendment is limited to militias. First off, see the above argument about rights.

Second, it ignores history. I make it a habit of reading the Declaration of Independence every 4th of July. Doing so has really informed my understanding of the Constitution. Here are some relevant tidbits in the Declaration’s complaints about King George:

“He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”

“He has affected to render the Military independent of and superior to the Civil Power.”

“For quartering large bodies of armed troops among us”

The Founders never contemplated standing armies and did not want them. While Congress was given the power to raise an army, the standing army we have now is a relatively recent thing.

It also explains why they made the President the Commander in Chief of the armed forces.

And, it explains the 3rd Amendment regarding the quartering of troops in times of peace.


In fact, 10 USC 246 states : “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”

We have a militia. It’s practically everybody (though all current members of the Supreme Court have aged out).

Stevens SHOULD know all these things. Well, in my opinion, every American should be taught these things.

23 thoughts on “Comment Of The Day: “From The ‘Appeal to Authority’ Files: Why Should We Care What John Paul Stevens Thinks Now?”

  1. Thank you for the honor, Jack.

    I was not happy with the ending.

    The comment made its points, but it did not have a good resolution.

    I am sure that you, a lawyer, performer, director, writer, understand the goal of bringing things to an end on a proper note. I did not stick the landing with this comment.

    Thanks anyway.


      • Jack,

        I agree.

        So many things in life come down to form versus substance. If you can successfully and reliably distinguish between these two things, you will ensure that you will be endlessly annoyed by those who can’t or won’t.

        I was happy with the substance of the comment; the form was lacking.


        • Jut,

          The most important thing that bears repeating even if we have to bludgeon those who pretent to know rhe Constitution is that the Bill of Rights is a list of proscriptions imposed on the government in order to convince people to ratify that document.

          The people give power and the people can take it away. Not the other way around.

        • I liked your form AND substance. Of course, I am the husband who would make bookshelves in the living room from cinder blocks and 1X8s, so you have that going for you.

    • Great post, Jut. The drafters/framers of the Declaration and the Constitution were social contract theorists. They held that the government existed to benefit the citizenry, not the other way around. They clearly did not want a king. In fact, some argued for periodic revolution to quell the growth of a power central government. Hence, the 10th Amendment.

      I also agree on the necessity argument: I don’t need a Gibson Les Paul Standard in oxblood finish with cream appointments and a Marshall stack but no one (besides my wife) can tell me I can’t have one. Likewise, I don’t need a rifle or hand gun but no one (absent a disqualifying action) can tell me not to buy one.


    • Great comment, Jut, and it has been noted that the main point (to me at least) is in your third paragraph. Rights exist by the very nature of human existence, and the role of government is not to establish but to protect those rights. Some orators and essayists will circle back to a main point in their ending, restating it for emphasis. Your closing hit on a couple of additional very important points, Stevens should know better (about the natural existence of rights), and Americans should be taught accordingly. Not a deficient closing at all.

  2. I used to think common sense according to the second amendment was easily understood.

    Our founding fathers were overthrowing a tyrannical government which refused to listen and abused its citizens. They understood the need for protection against another government attempting to subjugate citizens. Following this, the second amendment was meant to protect the populace from this happening again.

    And I always assumed the second amendment was understood as the second most important. It protected all the others from being removed. But it came second because words and ideas are still more important than defense.

    • As to the second paragraph, the anti-gun intelligentsia argue—absurdly and against all common sense—that the order of the Amendment is just random, because otherwise, it’s impossible to argue with a straight face that this was only an oddly specific and administrative note rather than a statement of the right to protect and defend yourself. I have always found that to be significant: resorting to lies and fantasy generally indicate that an advocate is not arguing in good faith.

      • …resorting to lies and fantasy generally indicate that an advocate is not arguing in good faith.

        This is why we lost those ‘well spoken and intelligent’ progressives from EA. Hard to defend such positions when emotionalism is taken off the table.

  3. The right to stand up against tyranny goes back as far as the Magna Carta, when the English barons forced John Lackland (no English king has gone by that name again) to stop acting like a tyrant at swordpoint. There’s always been a tension between respect for the rule of law and duly constituted authority, and individual rights in a free society. When the balance swings too far one way or the other, sometimes it’s necessary to turn to the use of force to even things out. I think the approach to that right to use force is different here than in Europe because of the different histories. We achieved our freedom through rising up and fighting for it, then retained the armed tradition as we pushed west through a dangerous wilderness with hostile natives. Our focus has always been on individual rights because quite often it all came down to the individual. The idea of individual rights here wasn’t a new one, it had been around in many ways in Europe since the Magna Carta, but, in the time that we were fighting either the Indians or other powers, and fought each other only once. The Europeans, especially the French, had no frontier and fought one another and themselves multiple times.

    That internecine fighting had decidedly mixed results. The worst was the French Revolution, where innocent people were sent to the guillotine for no reason at all, which ultimately brought Napoleon to power, and the rest is history. I think that stuck with the Europeans, and was in some ways the first war to end all wars. At that point they were willing to extend individual rights to a point, but, when there was tension between individual rights and the maintenance of good order, good order always took precedence. The structure of society was also very stratified – the farmer farmed, the merchant traded, the policeman kept order, the priest advised, the soldier protected, the king ruled, and people were expected to confine themselves to their proper roles. Armed revolt was considered treason, and punishable by death, and weapons were considered not to belong in the hands of the common people.

    As I pointed out above, in our 240 years we’ve had one civil war and one or two other minor conflicts. In the same time, Europe has had multiple revolutions in Ireland, France has gone through two kingdoms, two empires and five republics, Germany and Italy have gone through huge wars of unification that affected all the surrounding nations, Portugal went from monarchy to republic in a very brutal manner, all of Europe erupted in the Revolutions of 1848 (look them up), and that’s before we even hit WWI and after. Each time government has clamped back down a little harder in the name of maintaining good order. It’s resulted in a system in which civility and order take precedence over individual rights, and ordinary people are defenseless, cowed, and afraid to speak out. They malign us for our gun culture, which has been abused recently by some individuals, but I think they ought to look to their own culture of rationing freedom out grudgingly and taking it back with little process and the results before they malign us. I’d especially direct the French to their recent spate of shootings, mostly by Muslims. They have stricter gun laws than any state in the US, but apparently they are afraid to enforce them against the immigrants they are afraid of generally. In the meantime, they leave their own people vulnerable.

    A culture of vulnerability, weakness, and dependence does not produce much of anything. Name the last five major European medical breakthroughs? How about the last five great European technical advances? The last five European reforms that gave greater freedom? Stuck, eh? I’m not going to say an armed society is automatically a vigorous society, but a society of docile, defenseless sheep almost automatically isn’t.

    • Kudos for a very pertinent analysis. I think our society here has been gradually trending towards more state controls and less individual rights, but not nearly to the extent seen in much of the rest of the world. There have been some very cogent analyses here recently of the Bill of Rights, and it’s more clear than ever why so many states insisted on such amendments being added to the Constitution. It was a peculiar blind spot of the framers that they didn’t think enumerating such rights was a necessity, but thank goodness we adopted them..

    • This is fun.

      We would sort of owe our national virility to England because we were forced to fight them for independence. It’s shameful to leave our senile father to ramble like a madman on the world stage. Perhaps we could return the favor by conquering Europe, forcing them to fight for their independence from us. It’s in the habit of accommodating invading militants, and a sizable portion of its national defenses have been contracted out to us. It should be a cake walk. Additionally, by forcing them to fight a war of independence, we could save them from having to fight a more grisly war of Reconquista. They’d never win the latter; St. James Matamoros would probably have nothing to do with them in their current, flabby state. It seems we owe conquest to Europe on multiple levels – even their own absurd principle of unrequested protectionism.

      It’d be a long road turning that undulating mass of creeps, weirdoes, and moral reprobates into some sort of return on that investment, though. It might be more cost effective to manufacture an entire new continent, wreaking unpredictable havoc on ocean currents and sea levels, and start from scratch with the Chansons de Geste instead of a charter (such an advanced people, if we’re lucky, would conquer us in a few generations and maybe Europe to boot). The only remaining question is “how much do we really owe England?”

      • A lot. Culture, language, religions, values, traditions, perspective. Just look at the places that had the misfortune to be colonized by Spain. Spain took stuff away. England left valuable things behind.

        • Spain actually conquered so much of the new world they had to break it up into four viceroyalties. Unfortunately, the gold and silver they took, in one case a hall of gold and silver for the safe return of Atahualpa, who Francisco Pizarro then strangled anyway, acted on them like habit-forming drugs. Actually their success, after centuries of success kicking the Moors out, also was a drug, perhaps the same drug that drove Germany to take one step too far after fifty years of success on the battlefield. Eventually they overreached, and everything began to crumble, then finally fall.

          The Spanish system of colonization was really not sustainable. It placed the Spanish from Spain at the top, the Creoles (Spanish born in the Americas) below, with no hope of ever moving up, the mestizos (mixed Spanish and Indians) much lower down, and the Indians at the bottom, where they were used as slave labor. There were no colonial assemblies or any other form of representative government, that’s just not how they did things in Spain, nor how they would until much later. Eventually the really valuable stuff was all shipped back to Spain, new colonists stopped coming, and everyone except the Spanish from Spain said “why are we still tolerating this?”

          The rest is history, and you can read all about Simon Bolivar, Jose de San Martin, and all those other folks elsewhere. The thing is, once the viceroys were defeated, the remaining people had no solid democratic base to build on as the former British colonists did. So they turned to charismatic dictators who, arguably, were just as bad as the viceroys, like Santa Ana in Mexico and Francia in Paraguay.

          Some of South America still hasn’t gotten over this love affair with dictators to this day, as you can see by the recent “pink tide” that brought us de facto dictator Evo Morales in Bolivia and Hugo Chavez in Venezuela, who thankfully died six years ago. Without Chavez the pink tide fell apart (his successor Maduro isn’t up to the task, and no one else can step in), but it’s quickly being replaced by a “brown tide” (from brown shirts) of far right leaders now. I do not have faith in any of them being a Pilsudski or an Ataturk who rule with iron hands while leading their nations into democracy. No democratic base, no democracy.

        • Oh, I’ll agree. I’m a Magna Carta fanboy. Common Law is “swoll”, as the children say.

          England is ripe for conquest, then, with agreement from the utilitarian wing of conglomerate conservatism [/s].

        • Unhappily, when someone asks me what I know about the English Civil War, my response is always “Which one?”.

    • “and weapons were considered not to belong in the hands of the common people.”

      I thought it worth mentioning that this wasn’t always true everywhere in medieval Europe. In most medieval German towns, for example, every able-bodied man was REQUIRED to own a sword, and serve in the local militia, much like the minutemen of Colonial America.

      Which brings to mind another good reason for the right to bear arms…even besides self-defense, and defense against tyranny, who would you rather have serving as protection against foreign powers, someone who’s never touched a weapon in their lives until they were called to serve, or someone who has grown up handling at least the basic weapons that will be used?

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