The Minister of Agriculture: Flip-flopping or Signs of Intelligence?

One definition of intelligence is the ability to modify behavior in reaction to stimuli. If the stimulus changes, the rapidity of an organism’s response is one measure of intelligence.

Why is that when public officials react to new information (stimuli) and change their policy positions (intelligence), instead of being lauded for their acumen they are widely pilloried for their “flip-flop?”

The Maximum Leader and I concur in our admiration of Winston Churchill, one of the greatest figures of the Twentieth Century. Churchill was a study in changing positions based on new information. The country would be better served if our politicians were able to react to changed circumstances and evidence rather than acting as a demagogue debating society.

Perhaps this is the heart of the difference between folks discussing policy. Some folks examine the evidence and find a position, but are willing to change that position based on new evidence. Other folks choose their position in a vacuum of information, and then stubbornly defend their deeply held belief regardless of other information that arrives.

In an earlier post I admitted having changed my earlier opposition to rifle ownership. With additional stimulus – living in the country – I became aware that there are legitimate uses for rifles that do not threaten the common weal. Thus, I modified my position.

I did not modify it based on faulty Second Amendment myths. I also did not modify my belief that the government has the ability to and ought to limit the private ownership of weapons – to “well-regulate” if you will.

The Maximum Leader chooses to ignore the grammar of the Second Amendment and argues that the Amendment applies to individuals. To counter my argument that the courts have consistently ruled against that position, The Maximum Leader unwittingly provided ammunition for the other side. I hope that since he has accepted the authority of the Volokh Conspiracy, he will look at the following two rulings, and having been exposed to new stimuli, er, information, will change his reaction (this is not to say that he needs to change his position against gun control – I am not quibbling with that – my issue is with the erroneous belief that gun ownership is a right).

The Maximum Leader has helpfully provided links to the Volokh Conspiracy. Listed in the Second Amendment resources on the Volokh Conspiracy site is the case of United States v. Miller. So as not to be accused of selective quotation, the entire discussion from Volokh’s site is below. My comments are indicated by the “*”

V.C.:
United States v. Miller, 307 U.S. 174 (1939)
[The only extensive modern discussion of the Amendment]
An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton "did unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length [contrary to the National Firearms Act] . . . ."

* The issue here: Can Congress regulate firearms OR is the Second Amendment inviolate?*

V.C.:
A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

* A low level court initially agreed with the argument that the Second Amendment applies to individuals HOWEVER, the Supreme Court, on review of the case (U.S. v. Miller): *

V.C.:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

* Aha! The next court then rules that since the sawed-off shotgun is not necessary to the “preservation of a WELL REGULATED militia,” Congress DOES have the power to limit gun ownership. *

V.C.:
The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

* Dear Maximum Leader, I invite you to reread that last sentence. The Supreme Court in Miller v. U.S., clearly ruled that the Second Amendment MUST be interpreted and applied with the end of protecting state militias. It just can’t get any clearer than this. *

V.C.:
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. [Citing further sources, e.g., the Virginia Act of October 1785 providing for a Militia of "all free male persons between the ages of eighteen and fifty years," with certain exceptions.]

* A “body of citizens enrolled for military discipline. This isn’t private individuals. *

I’ll leave off the Volokh discussion for a moment.
Gentle reader if you wish to follow the links the Maximum Leader noted below and actually read the court cases, I invite you to do so. Also pay attention to Lewis v. U.S., the only major Second Amendment issue to reach the Supreme Court in the last 25 years – 1980. The Supreme Court ruled ONCE AGAIN that the Second Amendment does NOT apply to individuals.

There have been numerous instances of lower courts upholding citywide bans on handguns – again on the principal that the Second Amendment does not apply to individuals.

Although the NRA does not include that inconvenient fact in their pamphlets, the legal team of the NRA knows this to be true. They do not challenge gun laws on the basis of the Second Amendment because it is a sure loser. When they have had success, it has been based on the federalism issue – overturning federal laws that place an undue burden on state law enforcement.

In my earlier post, I said that there had only been one success (in a lower level court) for the individualistic interpretation of the First Amendment:
Earlier MOA:

(Note: Last year, I had to send the Maximum Leader a congratulatory note; an appeals court actually overturned a gun law on the basis of the Second Amendment. Since I support the rule of law, I have to now concede that the Second Amendment does give some protections to an individual's right to own firearms)

Note that I was actually acting intelligently here – The position I had argued for so long had been changed by a new court ruling – new information. Instead of applauding the intelligent reaction to new information, the ML used this admission of the facts to get in a cheap shot (oh, the poor oppressed MOA! Do I deserve another Undersecretary yet?):

The ML wrote:

“Of course, my favourite part of the post is right at the end of that 8th paragraph where the M of A deliciously writes: "Last year, I had to send the Maximum Leader a congratulatory note; an appeals court actually overturned a gun law on the basis of the Second Amendment. Since I support the rule of law, I have to now concede that the Second Amendment does give some protections to an individual's right to own firearms." Your Maximum Leader just loves what the M of A can put into a note... Allow your Maximum Leader to summarize for the rest of the minions who may not have been reading too closely: the Minister of Agriculture said that there was no individual right to gun ownership; then said there is. Humm... Can't get much clearer than that can we?”

Earlier in the note, I was accused of talking out of my “proverbial arse” on the court rulings. I hope I have demonstrated that the very links the ML used to support his individualistic fantasy actually support my contention about the courts consistently ruling for the militia interpretation. Except of course for that pesky ruling a couple of years ago. I would really love to know the name of the case – please e-mail the ML if you know it so we can look it up.

But leaving aside the court cases, lets check in with someone who is, one might argue, more familiar with Constitutional issues than your Maxmimum Leader, his Agricultural Minister, or even Professor Volokh:
In 1991, former Supreme Court Chief Justice Warren Burger referred to the Second Amendment as "the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,' on the American public by special interest groups that I have ever seen in my lifetime.. .[the NRA] ha(s) misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see — and I am a gun man." Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special' or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."
In conclusion, we can argue all day about the reasonableness and efficacy of gun control legislation, but we should move beyond the empty fraud that the individual gun ownership is a right. Just like all other topics, decisions should be made based on the common weal, not pseudo-historical crap.

-- Smallholder