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The Second Amendment and the Living Constitution:

The federal statute that preempts various lawsuits against gun manufacturers — passed last week — begins with two interesting items denominated Congressional "findings":

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

Of course, courts interpreting constitutional provisions are by no means bound by Congress's assertions about the provision's meaning; they may interpret the provision more broadly than Congress urges, or more narrowly. Yet I take it that part of the reason for the findings was that courts sometimes are influenced, at least in some measure, by the judgments of a coordinate branch of the federal government. (At least courts sometimes says that they are thus influenced; query how sincere such assertions are, and to what extent they are just there to support a conclusion that the judges would have reached in any way.)

In any event, this reminded me of an item that I wrote about in the National Review Online in December 2002, and that struck me as worth rerunning. Here it is, in case you're interested; and as you read it, you might add an item 3.5, which is "look to what coordinate branches of the federal government have said" — here, look to the Congress's most recent statements in the new act, as well as in the Firearms Owners Protection of 1986, and the Executive Branch's most recent statements in the Attorney General's Memorandum Opinion on the Second Amendment (2004). Note that the argument below does not endorse an "evolving Constitution" approach to interpretation, but just discusses what result I think an evenhanded application of that approach should yield, especially given that all the plausible guideposts — the 1868 views, current public opinion, state constitutional judgments, and coordinate federal branch judgments — point in the same direction.

[Some ask] . . .: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say . . . the Framers [did think] of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right to bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right to bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in [a 2002] abcnews.com poll . . ., 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a [2002] Freedom Forum First Amendment Center poll . . . found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right to bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right to bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right to bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

Adam:
Hi Eugene,

With regards to #1 (what people thought of the 2nd in 1868), isn't that only interesting if it turns out that the 2nd played a substantial part in the debate? In other words, if the 14th amendment were passed without deep consideration of how it would interact with the 2nd, why should we give it any more thought than those who debated it?

(I have no idea if it was debated or not, I'm simply asking about the validity of this frame.)
10.26.2005 1:47pm
AnonymouslyYours (mail):
I'm not really sure of the argument you're trying to make. Are you rejecting the concept of "evolving standards" and trying to frame it as a way of substituting one's own personal political views and using the fight over the Second Amendment to demonstrate that

Or do you believe that "evolving standards" can be read to broaden the security of the Second Amendment given its subsequent interpertation and its public support and because of this lawyers who oppose those guarantees are simply mistaken about where the standards are going?

My personal view is that I think it's wrong as a matter of interpertation to "evolve" Constitutional rights out of existence. When one talks about evolving standards one is really talking about is applying a constitutional right to a new situation or new circumstances. I don't think it's wrong of Second Amendment supporters (and I include myself in that) to address the argument that firepower is a lot stronger now than in the 1791 or 1868.
10.26.2005 1:51pm
Eugene Volokh (www):
AnonymouslyYours: "Note that the argument below does not endorse an 'evolving Constitution' approach to interpretation, but just discusses what result I think an evenhanded application of that approach should yield, especially given that all the plausible guideposts -- the 1868 views, current public opinion, state constitutional judgments, and coordinate federal branch judgments -- point in the same direction."
10.26.2005 1:52pm
corngrower:
you guys got me confussed.

The bill of rights are absolute prohibitions on what the govt cannot stick their nose in. NONE of the first 10 amendments 'evolve'. That is legalistic crap for, 'I'm smarter than you'.
10.26.2005 2:08pm
Gordon (mail):
Professor Volokh, now that we have established that the 2nd amendment applies to individuals, and you have made a VERY persuasive argument to that effect, we go on to the next questions - where is the limit to this right?

Does this right invalidate gun registration laws?

Does this right invalidate "no right-to-carry" laws?

Does this right invalidate "gun safety lock" laws?

Does this right prevent prohibition of certain classes of weapons, from the extreme example of nuclear weaponry to the more close questions of fully automatic guns or armor-piercing bullets?

Does this right invalidate mandatory criminal background checks?

Your co-conspirator David Kopel has some pretty "absolutist" views on these subjects. What are your views?
10.26.2005 2:11pm
AnonymouslyYours (mail):
Yes Professor Volokh, I understand that point. But maybe I'm reading too much into what you're posting but I think this is the more essential paragraph:

"What then do people mean when they say that 'evolving standards' should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence."

So really I'm asking whether you think the flaw is more fundamental than simply being "disingenuous" about where and how the stanard is evolving. By "not endorsing" a view on "evolving standards" are you really trying to demonstrate that evolving standards is too susceptible to that kind of dishonest, or one might say more neutrally results-oriented, reasoning by using the debate over the Second Amendment?
10.26.2005 2:11pm
Eugene Volokh (www):
Gordon: Great question -- I've been trying for years to write an article on the subject, but I've been stymied in large part by my not being able to figure out the answer. One day I hope to produce something; my sense, incidentally, is that the scope of the rights under the Second Amendment may well be somewhat different from the scope of the rights under most state constitutional rights to bear arms.

AnonymouslyYours: I'm trying to do exactly what I said I was doing -- explaining what results a fairly applied "evolving standards" approach should yield as to the right to bear arms. I don't want to go beyond that here, among other things because that would require going into the vast debate about constitutional interpretation about which volumes have been written; I don't have the time to go into that debate now.
10.26.2005 2:14pm
Scipio (mail) (www):
A very interesting post, Professor Volokh.

Quite a lot of food for thought.
10.26.2005 2:16pm
Gordon (mail):
It's interesting to see Professor Volokh turning the usual "progressive" evolving standards arguments and stand them on their head. Standards can evolve in many different ways. Justice Kennedy's paean to evolving standards in Lawrence v. Texas put the germ of this idea in my head - if standards can evolve, they can evolve an any particular direction. They can evolve agsinst homosexuals and homosexual acts. They can evolve to heighten the concept of a fetus as a person, thus reducing the woman's privacy right regarding abortion.

It's an argument that may come back to bite "living Constitution" advocates in the butt if the chimera of the "Constitution in Exile" movement somehow materializes from its current ethereal form.
10.26.2005 2:23pm
TJ (mail):
A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

Why couldn't the text in a state constitution's Bill of Rights assert, rather than secure, a right to the state?
10.26.2005 2:29pm
Eugene Volokh (www):
The point of Bills of Rights in constitutions is to protect rights against the sovereign that's being constituted. That's been the American pattern from the outset; that's why we have Bills of Rights. One can imagine a Bill of Rights in a federal constitution securing a right of states; but the federal Bill of Rights wouldn't secure or assert rights of the federal government (as opposed to against the federal government), and a state Bill of Rights wouldn't secure or assert rights of the state government.
10.26.2005 2:36pm
Ken Willis (mail):
The 2nd Amendment is probably subject to a rule of reason as is the first amendment. But the rule of reason is probably archaic law nowadays because the supremes just do what they want. So now it's not just shouting "fire!" in a theater is not protected speech, but political speech within a certain number of days of an election is no longer protected speech. If they black-robed tyrants can do that, think what they could do to the 2nd Amendment. We should hope that no 2nd Amendment case gets to the Supreme Court any time soon, or wave it goodbye.
10.26.2005 2:37pm
DonL:
Isn't the phrase "evolving standards" an oxymoron.

Wouldn't the amendment process take care of any needed evolving standards?

Doesn't the election process reflect evolving standards?

Wouldn't allowing non-permanent elected terms for the Supreme Court allow for the same evolving standards?
10.26.2005 2:41pm
Justin (mail):
When liberals use the term "evolving standards", what they meant is that some terms IN THE BILL OF RIGHTS ITSELF were DESIGNED to apply differently based on changing circumstances....that is, "cruel and unusual" was supposed to be based on social values of what is cruel and/or unusual the time (and not, as Eugene seems to imply, on what the bill of rights does or should protect against as a direct matter). Furthermore, what "speech" is has also matured as social viewpoints changed. Likewise, whether $100,000 constitutes "excessive bail" for a particular charge is measured by modern standards, not 18th century standards.

Likewise, "arms" have certainly changed. There was previously no 2nd amendmnet right (individual or otherwise) to bear a Colt .45 or a nuclear weapon, but modern social viewpoints must inquire whether one or the other (or both) are "arms" (the problem being that society certainly views nuclear weapons as "arms").

However, the underlying purpose of the amendment itself...for lack of a better description of what's at stake, I shall stick to the not-quite-correct terminology of whether or not to secure an individual or collective right to bear arms, "evolving standards" are irrelevant because this is a baseline question, like whether or not the establishment clause applies to the states, whether a district has been "previously ascertained by law", or whether or not an oath or affirmation is required to obtain a warrant.

REGARDLESS, Professor Volokh consistently uses the wrong test in all of his points. As for the 2nd and 3rd points, the baseline assumption is that evolving standards is a result of the "creeping penumbra" in which (mis)perceptions of the meaning of constitutional rules become reality. This also ignores the fact that the Bill of Rights is for the most part, by definition, anti-democratic. It is that 1st point upon which Eugene's 1st point fails. Without more, how 50.1 percent of Congress viewed the 2nd Amendment cannot sufficiently explain the meaning of the 14th amendment. What Eugene Volokh needs to show is that this view shared by 50.1 percent was likely to also be shared by those that proposed and ratified the 14th amendment....something that, given the difficulty of showing the intent incorporation itself, is going to be incredibly difficult to accomplish.
10.26.2005 3:33pm
Hebert Sampson (mail):
Hey, now, Volokh!

That Freedman's Bureau document is the best argument you've got. It intended to put guns in the hands of black people to protect them from white mobs. If that ain't an individual right against the majority (which can combine informally into a militia), I don't know what is. I'd also note that if the Constitution regards blacks as not people (at least in its original iteration), then the Freedman's Bureau document is certainly enlarging the Second Amendment in light of the 13th by including former slaves in the population of individuals to whom the entire Bill of Rights applies. You can't argue against such a claim that the right of an ex-slave to bear arms is collective (even if not synonmous with that of other national citizen's collective right), because the point of the 13th AMD was to destory the racial caste system; segregating black gun owners into a caste of gun-owners by treating them collectively would defeat the entire point. Also, saying that the whole nation has collective gun rights would defeat the point of specifically granting the right to ex-slaves, because an all-white militia in the postbellum South certainly would not be defending ex-slaves from pogroms and lynchings. Quite the freakin' opposite!

So my question is this:

SINCE WHEN DID EUGENE VOLOKH BECOME A BLACK NATIONALIST?
10.26.2005 3:34pm
Stamboulieh (mail):
Professor Volokh,

That is a very nicely worded argument.

My question to you is this: If the 2nd, through the 14th amendment applies to the state, and the state has its own consitution that specifically protects an "individual" right (specifically the RKBA), how can the state pass a law barring an open carrying of arms?

Stephen
10.26.2005 3:34pm
Justin (mail):
Ken, without going into the difficult question of to what degree the Constitution protects speech against Congress's attempt to prevent corruption, the suicide pact, etc. etc., I would simply like to remind you that the rule of reason has always been very deferential to the politic that the right regulates against. That tradition, remember, is why many conservatives are outraged over Lawrence. To the degree you seem to be blaming the Supreme Court's juriprudence on CFR on unevenhandedness, I do not think your evidence does anything to support your claim.
10.26.2005 3:38pm
stovepipe:
Along the lines of Anonymously Yours, I would like to get a sense of where most advocates of evolving standards stand on restricting a given right once it's been recognized. Should narrowing a right be just as pliable and easy as expanding one into new contexts because of our 'evolved standards'?
10.26.2005 3:38pm
Dilan Esper (mail) (www):
Some day, I may write that law review article about this that I know I have inside me. Essentially, I think the Second Amendment is quite straightforward and has been overinterpreted both many courts, who want to kill it, and by some Second Amendment advocates, who don't want to admit that some gun control laws that they oppose on policy or slippery slope grounds are nonetheless constitutional.

In interpretation, you always start with the text. If the text is not ambiguous, you don't go to history, policy, congressional findings, or anything else. I don't see what's ambiguous about the text of the Second Amendment. It says "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 preamble states the purpose of the Amendment-- to protect the security of a free state. A well regulated militia, i.e., an armed populace, is necessary to that security. Thus, the right of the people to keep (own) and bear (carry) arms shall not be infringed.

There's no way that can be interpreted as a "collective" right. (Indeed, I don't think there's any such thing as a "collective" right.) It is an individual right that is necessary to serve a collective purpose.

At the same time, "well regulated" secures the government's power to regulate gun ownership. So long as the regulations do not defeat the Amendment's purpose of ensuring an armed populace to protect the security of the state, they are constitutional. Thus, waiting periods, background checks, bans on possession of well-defined, dangerous weapons (e.g., machine guns, weapons of mass destruction), and bans on possession of weapons in certain defined places (e.g., football stadiums, airports) are constitutional. Out and out bans on ownership of weapons, such as the D.C. gun ban, or prohibition of the carrying of arms (e.g., some concealed-carry laws) are unconstitutional.

This isn't that hard. I think that it is precisely that this result satisfies noone that we see these more esoteric appeals to history, policy, and congressional findings for rationales to deny the obvious meaning of these words.
10.26.2005 3:38pm
Hebert Sampson (mail):
I don't see what's ambiguous about the text of the Second Amendment.

A right to keep and bear Arms means what it says. I get free room and board provided by the government, i.e., "Keep". And the government, through endangered wildlife acts, cannot take away my "bear Arms." They can take away the skins, though, because Congress has the right to raise an army, and we may need to trade those skins to some Injuns to do so in case the French invade from Canada.
10.26.2005 3:41pm
Justin (mail):
(I only PS to note, in concession, that if there was significant evidence that the 14th amendment was meant to incorporate the 2nd amendment, and the authors of the 14th amendment believed that in incorporating the 2nd amendment they were an incorporating an individual right, that misperception DOES alter the baseline question, at LEAST as it applies to the states, and would (very problematically, given advances in technology, though perhaps limited by a new "anticriminal" purpose) change the baseline assumptions of the 2nd amendment at least as applied to state gun control laws.
10.26.2005 3:42pm
Justin (mail):
So long as the regulations do not defeat the Amendment's purpose of ensuring an armed populace to protect the security of the state, they are constitutional. Thus, waiting periods, background checks, bans on possession of well-defined, dangerous weapons (e.g., machine guns, weapons of mass destruction).

Dilan, here's my challenge to you:

It is clear that the collective security from foreign invaders does not require the citizens to have access to handguns any more than it requires them to have access to nuclear weapons. If the city of DC makes a judgment that "handguns" are "well-defined, dangerous weapons", how does your interpretation protect that right (keep in mind that "knives" and "muskets" are both types of weapons).
10.26.2005 3:48pm
duglmac (mail):
Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

I think if we are going to suppose that judges might have the hankering to 'update' the constitution, that they might have to consider 'updating' the following parts of the constitution first?

Article. I. Section 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article. III. Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
10.26.2005 3:56pm
Richard Bellamy (mail):
If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right to bear arms. Most of them are quite explicit in securing an individual right,

From a purely logical perspective, is this an argument IN FAVOR of an individual right to bear arms, or an argument AGAINST it?

It seems to me if you have 49 laws saying "individual right" and 1 law saying "wishy washy pseudo-non-sequitur militia stuff", isn't the best interpretation that the one law that is different means something different that the 49 that are the same?

Put another way, the argument is, "People knew how to say 'individual right' when they meant it. Here, they didn't say it, therefore they didn't mean it."

While some of your arguments seem somewhat forceful, this one seems somewhat of an orphan.
10.26.2005 4:00pm
Dilan Esper (mail) (www):
Justin:

While I am not at all convinced, as a policy matter, that the DC residents owning guns is necessary for collective security, the framers already made that conclusion. (I should mention that I AM convinced that DC residents owning guns is quite important to their own safety and the safety of their families.) We have to take it as a given that a well-regulated militia is necessary to the security of a free state, because that's what the text says.

So the question becomes, would a total ban on handguns in a major American city serve the purpose of having the armed populace that the framers envisioned would be necessary to the security of the state. I think the answer is pretty obviously "no", once you take as a given that they thought the populace needed to be armed. Handguns are inexpensive, easily stored, and more effective than shotguns. They are also quite useful for an individual in combat. In contrast, a nuclear weapon, for instance, is none of those things.

I realize there are close calls with respect to some categories of weapons. And on those issues, history isn't going to help us out much anyway, because the framers were drafting the provision in an era of shotguns and muskets. But that doesn't mean only shotguns and muskets are protected-- where they have stated the purpose in the text, you have to try to discern the relationship between the purpose and the regulation at issue (just as a court interpreting the Fourth Amendment's application to a new technology such as thermal imaging relates that technology to the interest in preserving the privacy and sanctity of the home that the provision is intended to serve).

I don't say that all the potential cases are simple. But the MEANING of the Second Amendment IS simple. It confers an individual right that is subject to reasonable regulations. It just happens that nobody-- not the extreme gun controllers nor the NRA-- really likes that result.
10.26.2005 4:00pm
Unamused:
Richard Bellamy:

State constitutions also specify things like freedom of speech and of the press. What's your point?
10.26.2005 4:03pm
Shelby (mail):
Eugene:
You don't like a constitutional right...? No problem! Just evolve it out of existence!

You've finally found a credible argument for Intelligent Design over Evolution!

And everyone, please no more nonsense about the Second Amendment and nuclear weapons. Bombs, cannon and the like were classified as "ordnance" when the Constitution was drafted, and were not included in the Amendment.
10.26.2005 4:05pm
TJ (mail):
The point of Bills of Rights in constitutions is to protect rights against the sovereign that's being constituted. That's been the American pattern from the outset..

I thought it was to limit -and thus to an extent, define- the power of the sovreign being created, securing rights to the [people, state, whatever is next in the hierarchy] and powers to the state?

I the latter is less true in light of enumeration/delegation-type provisions.
10.26.2005 4:05pm
musterion (mail):
Dilan wrote:


At the same time, "well regulated" secures the government's power to regulate gun ownership. So long as the regulations do not defeat the Amendment's purpose of ensuring an armed populace to protect the security of the state, they are constitutional. Thus, waiting periods, background checks, bans on possession of well-defined, dangerous weapons (e.g., machine guns, weapons of mass destruction), and bans on possession of weapons in certain defined places (e.g., football stadiums, airports) are constitutional. Out and out bans on ownership of weapons, such as the D.C. gun ban, or prohibition of the carrying of arms (e.g., some concealed-carry laws) are unconstitutional.


Please read the relevant commentary on what "well-regulated" means. It does not, if fact, refer to regulations as in laws, etc., but refers to the practice and drill required to have an efficient and disciplined fighting force.
10.26.2005 4:06pm
Hebert Sampson (mail):
But the MEANING of the Second Amendment IS simple. It confers an individual right that is subject to reasonable regulations.

A right to keep and bear Arms means what it says. I get free room and board provided by the government, i.e., "Keep". And the government, through endangered wildlife acts, cannot take away my "bear Arms." They can take away the skins, though, because Congress has the right to raise an army, and we may need to trade those skins to some Injuns to do so in case the French invade from Canada.
10.26.2005 4:09pm
Houston Lawyer:
I believe that courts have previously held that weapons not ordinarily used by a militia, such as brass knuckles, are not covered by the Second Amendment. I could see this reasoning extrapolated out to weapons of mass destruction, which a militia would not be expected to use against an invading force. However, I believe that it was not uncommon prior to the Civil War for individuals of significant means to own cannons. I therefore believe that individuals should be allowed to own most types of weapons used by a modern military. And yes this would include gattling guns and exploding projectiles.

I don't believe that state, city or county governments should have any rights to further restrict this right. If your right is subject to the whim of a city government, you have no right at all.

We don't allow state, county or city governments to regulate any of our other rights.
10.26.2005 4:10pm
Alan (mail):
Okay, maybe I'm stupid. But why does the 2nd amendment only apply to the states via the incorporation doctrine?

Unlike the 1st Amendment, it doesn't limit its application to one level of government.

The Bill of Rights, by its terms, indicates that it binds the states also, speaking of (10th) powers retained by the states and the people, if the Constitution doesn't forbid them from having that power.
10.26.2005 4:10pm
Avatar (mail):
I'm not sure it -is- clear that access to handguns isn't required in order to obtain "collective security from foreign invaders". By way of example, 9/11 would be much less of a remarkable date if one or more of the passengers on those flights had been so armed. (Yes, inflammatory, but it's a counterexample from recent history, so it's at least pertinent to the topic. And yes, it's possible that it wouldn't be remarkable because hijackings would be more common.)

As far as "where do you draw the line", I don't see that we need to have some kind of overarching principle as our only guide. Compare gun laws to laws regarding speech. The right to free speech is as guaranteed as the right to bear arms, and yet there are plenty of laws against speech crimes - libel, "clear and present danger"ous speech, sexual harrassment even. You won't find the justification for any of those exceptions -anywhere- in the First Amendment, yet most of 'em are a good idea. Same with gun laws - we have a pretty effective body of law to determine which arms may be borne and under what circumstances. In both areas of law, there are areas of overreach (sexual harrassment law, campaign finance law, versus DC gun ban), but you can't conclude that because the absolute position is flawed, that any restriction is thus all right.

Under that kind of analysis, registration would probably be permissible from a constitutional perspective. But at the same time, I absolutely see why gun-rights advocates are opposed to it; in an environment where the right itself is under assault, anything that makes confiscation easier is a bad idea, and nothing would make it easier than a big registry of where all the law-abiding owners keep their guns.
10.26.2005 4:17pm
Unamused:
Alan, I'm stupid too. See,

First: "Congress shall . . . "
" . . . the right of the People . . . "
Second: " . . . the right of the People . . . "
Fourth: " . . . the right of the People . . . "
Seventh: " . . . any court of the United States . . . "

It looks to me like the Framers knew how to distinguish between limitations on the power of the federal government and generic "rights of the people" against any government.
10.26.2005 4:19pm
Fran (mail):
Great discussion.
I like what I've read from Justin and Dilan Esper.

I apologize in advance for this question; my intention is not to slow the debate but to open it to those of us who aren't constitutional scholars.

People with views interpret the constitution. They can be originalists, texturalists or evolving standards...whether progressive or regressive...depending on your point of view. Justin made a great point regarding the Colt 45.

Shouldn't an originalist, like Scalia and Thomas, feel obligated to restrict any gun other than those in production at the time the amendment was passed?
10.26.2005 4:20pm
Dilan Esper (mail) (www):
muster:

There's both an interpretative objection to your argument and a substantive objection.

The interpretative objection is that you can't go to the history when the text is clear. "Well-regulated" has a clear meaning, and it's not drills, etc. You have to give words their ORDINARY meaning, unless it is clear that some technical meaning is called for. This is Statutory Construction 101.

The substantive objection is that it is completely unreasonable that the framers would prattle on about drills in the Constitution, or that they would feel that they had to put language in the document to ensure the government's power to drill the troops. That's a silly, make-weight interpretation conjured up by people who don't like gun regulation.

Further, even if "well-regulated" did mean drills in 1789, that doesn't mean that it EXCLUDED other potential regulations of the militia. To pick one that might be somewhat relevant (if we have to get into history), do you believe the framers would have said that the government has no right to ASSIGN weapons to the members of the militia, e.g., "you take this musket, you over there with the good eye, be the lookout and use this rifle with the sight on it"? Isn't that part of "well-regulated" just like drills would be? And if so, why is the modern day equivalent of that— "you can have this weapon but not that one"— constitutional?

Really, again, I don't think that "drills" is serious constitutional interpretation.

Alan:

I believe Barron v. City of Baltimore (a pre-14th Amendment case) held that the entire Bill of Rights was only intended to bind the federal government. Whether or not that was rightly decided, the Supreme Court saw no distinction between the First Amendment's invocation of Congress and the other provisions.
10.26.2005 4:21pm
Dilan Esper (mail) (www):
Avatar:

I am not criticizing gun rights advocates for advocating minimal or no gun regulation. I just don't think that is constitutionally required, given the actual text of the Second Amendment. What is constitutionally prohibited is gun prohibition, or regulations that impinge on the intention that there be an armed populace.

I do think, at some point, there may be a "grand bargain" on the registration issue, because I agree with you that gun rights advocates are not irrational to oppose registration in a climate where even prohibition would probably be upheld by the courts (because of the stupid "collective right" doctrine). The grand bargain would be that the Second Amendment is itself amended to make clear that it confers an individual right, and in that context, that the government will obtain greater powers to keep track of firearms for the purpose of solving crimes. (Whether this takes the form of bullet tracing, registration, or something else, I don't know.) I think that such a bargain could probably obtain the support of a majority of the populace, though both the NRA and Handgun Control, Inc. would be dissatisfied with it.
10.26.2005 4:26pm
Unamused:
Dilan Esper:

Excuse me, but "well-regulated" has a simple, ordinary meaning. It is the same as "well-ordered." Nobody would say "the banking industry is well regulated" to mean either "the OCC and the Fed do a really good job," or "the banking industry is heavily regulated." It does not refer to the kind of thing you find in the CFR. Do not confuse "well-regulated" with "regulation." I'm not even sure "regulation" in the CFR sense was even a word in 1791. It's true that at least since the early 20th century most armies have had Field Regulations. However, those cover organization, armament, doctrine, and tactics. Being properly armed is a part of being "well-regulated."

What's the name of that old clock company again? I don't think it means the clock makes rules.
10.26.2005 4:34pm
Clayton E. Cramer (mail) (www):
Gordon asks:

Professor Volokh, now that we have established that the 2nd amendment applies to individuals, and you have made a VERY persuasive argument to that effect, we go on to the next questions - where is the limit to this right?
Look to what sort of laws were in effect in 1791 (for how this limits federal authority) and what sort of laws were in effect in 1868 (for how this limits state authority).


Does this right invalidate gun registration laws?
Almost certainly not. Of course, because Haynes v. U.S. (1968) exempts convicted felons from punishment for failure to register (Fifth Amendment protection against self-incrimination), what's the point?


Does this right invalidate "no right-to-carry" laws?
Many state supreme courts have taken the view that the RKBA requires that at least open carry must be allowed, if concealed carry is prohibited. For example, Idaho's Supreme Court in In re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902) ruled that a city ban on all carrying of deadly weapons violated both the Idaho RKBA, and the Second Amendment. A minority of state supreme courts have ruled that even concealed carry couldn't be prohibited. Kentucky's Supreme Court in Bliss v. Commonwealth (1822) struck down a ban on concealed carry because it contradicted the state's RKBA clause. Vermont's Supreme Court in State v. Rosenthal (1903) struck down a Rutland city ordinance banning carrying of firearms for being contrary to the state constitution's RKBA, because it banned all carry.


Does this right invalidate "gun safety lock" laws?
Probably not. There are a number of firearms laws in 1791 intended to protect public safety, such as state laws and city ordinances limiting the amount of gunpowder that you could store in your home, and of course, laws that required you to carry a gun when you were away from home were pretty common in the colonial period, as well as laws requiring to bring your guns to church. These were justified as public safety measures. Visit here to see more of these you could ever have imagined.


Does this right prevent prohibition of certain classes of weapons, from the extreme example of nuclear weaponry to the more close questions of fully automatic guns or armor-piercing bullets?
I don't find any basis to argue that nuclear weapons were contemplated or envisioned by the Framers--there is a scale of difference that makes even the most feared weapon of the day--an armed vessel--seem puny. But there isn't a common modern small arm that was outside the imagination of the Framers.

Highly concealable pistols? Sure. I've held Paul Revere's pocket pistol--and it is tiny. Repeating handguns? They had them--although they were less reliable and less safe than modern pistols. Automatic weapons? There is a 1709 English patent for something that bears an uncanny resemblance to the Gatling gun. Sniper rifles? The Pennslyvania Committee of Safety in 1776 directed letting of a contract for a "wall gun" with a telescopic sight.

Significantly, the federal government has not banned private possession of full automatic weapons. They do have a relatively complex regulatory scheme, but actual bans are strictly state matters. A number of states have no machine gun regulation whatsoever, because the federal system is adequate. Even proponents of the National Firearms Act of 1934, which first regulated machine guns, recognized that there was a Second Amendment question if the federal government enacted a ban on private ownership. Attorney General Cummings was asking for this new law, but he explained that the regulatory matter was done through a tax stamp and registration because:
If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "we will tax the machine gun" and when you say that "the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated", you are easily within the law. [National Firearms Act, “Hearings Before The House Committee on Ways and Means”, 73rd Cong. 2d Sess., (1934), 18-19.]
Quite a number of regulatory measures are constitutional to keep guns out of the hands of the insane, the criminal, and minors, but a measure whose primary purpose is to disarm the masses isn't going to fly.

Does this right invalidate mandatory criminal background checks?
No, because the notion that a person might lose the right to have a gun for criminal actions wasn't new in 1776. There are a number of colonial examples. Revolutionary governments confiscated guns from people who were Loyalists--although they were careful to compensate them for guns taken for public purposes, and other guns were supposed to be returned to the Loyalists after the war.
10.26.2005 4:37pm
Dilan Esper (mail) (www):
Unamused:

Having a properly armed citizenry is the purpose of the Second Amendment. But your discourse on "regulated" is, with all due respect, bunk. "Regulate" comes from the Latin "regula", meaning a rule. The word first appeared in English in the 15th Century, meaning, to govern or direct according to rule, or to bring under the control of law or constitued authority. The sense of the word meaning "ordered" is the one that came later-- a metaphorical usage that essentially meant "as if according to rule".

Further, your statement that the words "well regulated" could not mean either that the regulatory agencies do not do a good job or that the regulation is heavy is completely incorrect-- both the usages you posit actually make perfect sense.

Finally, I think the clincher is what "well regulated" means in the sense of a militia. A militia, after all, is a military organization. Military organizations have had rules and regulations since time immemorial, including, specifically, what arms the soldiers could carry. If your Commander in the militia in 1776 ordered you to carry a musket rather than to operate a cannon, I am quite sure you were required to obey the order. Thus, it is PERFECTLY clear that when one says a "well regulated militia", one is referring to a militia which is subject to rules and regulations that the members of the militia were required to obey.

The preamble also makes the most sense given this interpretation. After all, a well regulated militia quite plausibly is necessary to the security of a free state. A poorly regulated militia, or an unregulated one, may well be antithetical to that security.

Again, I think these arguments are make-weights. The most vociferous pro-gun advocates HATE the "well regulated" language, so they try to read it out of the Amendment with creative interpretations that ignore the ordinary meaning of the word. Just the same thing that gun control advocates do with the words "right of the people".
10.26.2005 4:47pm
Dilan Esper (mail) (www):
Clayton:

Excellent post. I don't agree with you about all the particulars, but you have clearly thought about the issue of what sorts of regulations would be permissible under the Second Amendment. That is, I believe, exactly the sort of inquiry that is required by the Amendment, rather than the blithe assumption that the Second Amendment never applies, or in contrast, never permits any regulation of gun owernership.
10.26.2005 4:50pm
Clayton E. Cramer (mail) (www):

While I am not at all convinced, as a policy matter, that the DC residents owning guns is necessary for collective security, the framers already made that conclusion. (I should mention that I AM convinced that DC residents owning guns is quite important to their own safety and the safety of their families.) We have to take it as a given that a well-regulated militia is necessary to the security of a free state, because that's what the text says.
It is important to understand that the Second Amendment was written by a committee. There's no explicit statement of intent to deal with private criminals, but if you read documents such as Blackstone's Commentaries on the Laws of England, he makes it clear that the right to be armed was not only for defense against tyranny, but also private criminals. In any case, nearly all courts (including state supreme courts) that have examined the meaning of the Second Amendment agreed that it was an individual right. You should be able to find a copy of my book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger, 1994) in your local law library.
10.26.2005 4:53pm
Clayton E. Cramer (mail) (www):

Having a properly armed citizenry is the purpose of the Second Amendment. But your discourse on "regulated" is, with all due respect, bunk. "Regulate" comes from the Latin "regula", meaning a rule. The word first appeared in English in the 15th Century, meaning, to govern or direct according to rule, or to bring under the control of law or constitued authority. The sense of the word meaning "ordered" is the one that came later-- a metaphorical usage that essentially meant "as if according to rule".
Actually, the term "well-regulated" gets used in the sense of "competent" or "does what it is supposed to" in the Federalist Papers.

The Second Amendment was originally three independent clauses; one that held that the best security of a free state was a militia; one that guaranteed "the right of the people to keep and bear arms"; and a third that guaranteed the right of those "religiously scrupulous of bearing arms" that they wouldn't be required to do so. The third clause was knocked out in committee out of fear that lazy people would declare themselves "religiously scrupulous" to get out of militia duty. The editing job took out the semicolon. My book has a detailed, blow by blow description of what happened.
10.26.2005 4:57pm
Clayton E. Cramer (mail) (www):

That is, I believe, exactly the sort of inquiry that is required by the Amendment, rather than the blithe assumption that the Second Amendment never applies, or in contrast, never permits any regulation of gun owernership.
I think you would have a hard time finding someone who insists that the Second Amendment permits no regulation of gun ownership. Nearly every RKBA activist I know agrees that laws prohibiting violent felons from owning guns are not only constitutional, but wise. There is some argument about whether laws prohibiting non-violent felons from gun ownership make sense.

Much of the dispute is about whether particular laws make sense. Some are clearly constitutional, but stupid. Some people who haven't thought this through may call a proposed law unconstitutional when they really mean, "This isn't going to do any good."
10.26.2005 4:59pm
Paul Gowder (mail) (www):
What about other weapons? Gun advocates never address this question. Conceding arguendo that the text of the 2nd amendment forbids restrictions on private gun ownership, and that part of the purpose of this is to ensure that the people are just as well-armed as a potentially oppressive government (insert Jeffersonian right-of-revolution stuff here), doesn't this mean that I should be able to keep tanks and ICBM's?
10.26.2005 5:10pm
Clayton E. Cramer (mail) (www):
Dilan Esper writes:

The preamble also makes the most sense given this interpretation. After all, a well regulated militia quite plausibly is necessary to the security of a free state. A poorly regulated militia, or an unregulated one, may well be antithetical to that security.
Throughout the period between the end of the Revolution and about 1800, there was a major conflict underway between two differing schools. One said that standing armies were dangerous to a republic, because of the danger that the President might make himself king. The other said, "That's a great theory, but we really do need a standing army, even if it isn't very big, because militias are really not competent to fight professional militaries." The problem was that the emerging liberalism viewpoint that emphasized the individual won the battle with the people, and it became increasingly difficult to get members of the militia to show up for musters. The Militia Act of 1792 required every white male citizen from 18 to 45 to own a gun, and show up for duty. Critics said that it was so weak that it "murdered" the militia.

I have a lot more about this in my book For the Defense of Themselves and the State. Kohn's book Eagle and Sword examines these disputes in great detail, as does my upcoming book Armed America. (My agent is still negotiating the contract with the publisher, but current plans are to have it out next September.)
10.26.2005 5:10pm
Christopher (mail):
Dilan,
Your posts here have been very interesting. I do have a few questions though regarding your contention that a variety of regulations are/would be constitutional. You state that we need to take as given that a militia is necessary to national security, and rightly so. It would seem to me then that any regulation that pulls the teeth from said militia would then be unconstitutional. Nuclear weapons are obviously not a good discussion topic, but smaller things like grenades, grenade launchers, LAWs, field mortars, automatic weapons, etc. would all obviously be necessary to a functioning militia. Basically I don't see how you can see as constitutional any provsion that prohibits something that would be available to a modern light infantry outfit. Obviously this could be disasterous if it were allowed, but by not ammending the constitution till this point it seems as if we have gotten ourself in a jam.
10.26.2005 5:11pm
Dilan Esper (mail) (www):
Clayton:

I used to think that it was true that nobody seriously thought that the Second Amendment was absolute. But in the past few years on the Internet, I've run into quite a few such persons, as well as persons who refuse to admit that the Amendment itself permits some regulation and simply define themselves out of the tough issues. (See above comments, for instance, about how nuclear weapons are not arms, and how the Second Amendment gives you a right to have a cannon.)

I think there's a great fear of the reasonable regulation issue among at least some gun advocates, either because they really hold extreme views about what sorts of arms we should be able to have, or, more likely, because they have perfectly valid slippery slope concerns about conceding any limitations on the right to bear arms. (Your post itself indicates quite plausibly how, for instance, the rationale for disarming felons can also arguably justify background checks and even gun registration.)

The fact is, it is one of the great crimes of modern constitutional intrepretation that the courts have been unwilling to recognize the Second Amendment's clear protection of the right to bear arms. But I do think there are plenty of people who would at least like to believe that when that wrong is rectified, it will mean that all the regulations that they don't like will suddenly be swept away, and I doubt that will be the case.
10.26.2005 5:14pm
Unamused:
Clayton:

Throughout the period between the end of the Revolution and about 1800, there was a major conflict underway between two differing schools. One said that standing armies were dangerous to a republic, because of the danger that the President might make himself king.

That's interesting; I thought the argument was that the army leaders themselves would overthrow the civilian government. I'd never heard it mentioned that the Framers were worried about the President himself taking over the whole thing. Geez, did these guys have any historical precedents besides late Republican Rome?
10.26.2005 5:15pm
Dilan Esper (mail) (www):
Christopher:

You have to distinguish between what the militia collectively can hold and what the individuals in the militia need to keep and bear. (And remember, "bear" and "keep" are two different things.) There are all sorts of weapons (and were all sorts of weapons even in 1791) that the collective militia-- or other form of military organization-- should have, but which can be restricted from individual members of the militia without the purpose of an armed populace ready to defend the free state suffering. Many of those weapons are weapons that an individual cannot plausibly "bear" on his or her person.

Again, those sorts of regulations fall within the scope of a well regulated militia. What doesn't fall within that scope is disarming the populace-- THAT'S what the Second Amendment clearly bars the government from doing.
10.26.2005 5:18pm
Clayton E. Cramer (mail) (www):
Paul Gowder asks:

What about other weapons? Gun advocates never address this question. Conceding arguendo that the text of the 2nd amendment forbids restrictions on private gun ownership, and that part of the purpose of this is to ensure that the people are just as well-armed as a potentially oppressive government (insert Jeffersonian right-of-revolution stuff here), doesn't this mean that I should be able to keep tanks and ICBM's?
I've addressed it in For the Defense of Themselves and the State. Just about every common small arm today has something roughly equivalent in the Framer's era, at least when you factor in the dramatic improvements in trauma care since then. A blunderbuss threw a lot of lead in the air, and in an era before antiseptic procedures and antibiotics, even one pellet in your belly stood a good chance of killing you. Blunderbusses weren't rare, either, in civilian hands. I have found no shortage of them in Revolutionary government records of small arms confiscated from Loyalists.

Hand grenades are for sale in Philadelphia in 1783. I've found ads offering them, and Boston's 1786 firearms safety ordinance, designed to keep people from leaving loaded firearms in unoccupied dwellings (fire hazard) has an impressive list of weapons that apparently were lawful to own: "fire-arms, or any bomb, granade, or other shell... in any house, outhouse, barn, stable, store, ware-house, shop, or other building...." Other sections apply this to "cannon, swivels, mortars" and other military ordnance, and prohibit bringing any loaded gun into a building. Here's an article that may interest you about gun safety regulation of the time.

Tanks? Nothing equivalent back then. ICBMs? Nothing equivalent, and not even in their imagination.

If you want to buy into the "only muskets are protected by the Second Amendment," explain why freedom of speech and of the press applies to any technology more advanced than standing on a soapbox, or a true printing PRESS.
10.26.2005 5:19pm
Shelby (mail):
Houston lawyer:
However, I believe that it was not uncommon prior to the Civil War for individuals of significant means to own cannons.

The fact that it was permitted does not mean it could not be prohibited. Are you aware of any pre-Civil War court cases that struck down restrictions on such cannon?

Fran:
Shouldn't an originalist, like Scalia and Thomas, feel obligated to restrict any gun other than those in production at the time the amendment was passed?

Just as they are obligated by the First Amendment to restrict any words other than those in dictionaries at the time it was passed?
10.26.2005 5:22pm
Unamused:
I'd be happy with a constitutional right to own any weapon that an individual police officer or soldier can carry and use. This includes assault rifles, hand grenades, and light machine guns, but not heavy machine guns, cannons, most rocket launchers, or any fighting vehicles. I'm also content with restrictions that are actually helpful for serving purposes like keeping weapons out of the hands of criminals. That includes background checks, maybe even some types of registration, but not waiting periods, which serve no purpose other than to make it more difficult to purchase a firearm.

I think this is perfectly consistent with any interpretation of the Second Amendment other than the "collective right" interpretation.
10.26.2005 5:26pm
Harpo:
I see conservatives spend so much ink and bandwidth on this issue, and yet the last time SCOTUS dealt with this was 1939.

Are the NRA's lawyers that incompetent ?
10.26.2005 5:27pm
Bob Bobstein (mail):
Dilan: The preamble states the purpose of the Amendment-- to protect the security of a free state.

I'm not sure how persuasive that is. How many amendments in the Bill of Rights have a "preamble"? The First Amendment doesn't begin, "Because a free press is really important..."; the Third Amendment didn't say, "Boy, didn't you hate it when the British put soldiers in your house? We did too. Therefore..." Is there a historical basis for the argument that the Second Amendment alone has a preamble?

(There's a title for your article by the way-- "Gun Rights Optimists Say It's Half Empty: Why There Is No Legal Meaning to the 'Well Regulated Militia'" Language in the Second Amendment)
10.26.2005 5:27pm
Shelby (mail):
Unamused:
Geez, did these guys have any historical precedents besides late Republican Rome?

They didn't have to think back any further than Cromwell. Certainly the executive's power was their chief concern; arguably the executive therefore ended up being too weak until the Civil War.
10.26.2005 5:28pm
Dilan Esper (mail) (www):
Clayton's answer to Paul regarding different types of weapons strikes me as essentially correct. As an interpretative matter, when you are presented with a technology that didn't exist at the time a provision was drafted, you have to "apply the principle".

For instance, as I mentioned before, to determine whether thermal imaging of people's homes is a search under the Fourth Amendment, you have to look at the sorts of invasions (especially home invasions) that the provision was meant to restrict.

To determine whether the use of lethal injection is a cruel and unusual punishment, you have to compare it to the types of punishment that the framers were meaning to bar. (You also can consider evolving standards of decency, if you believe that the clause was intended to reflect contemporary standards and not simply those in place at the time it was drafted.)

As Clayton notes, you look at the purpose of the First Amendment-- free expression of ideas-- in determining that new technologies are part of the "press" and "speech" just as the printing press was.

Similarly, it's not rocket science to determine if ICBM's are protected by the right to bear arms. (Sorry about the bad pun.) The framers were very clear about their purpose-- to have an armed populace, because one was necessary to the security of a free state. There's nothing in that language that would indicate that anything goes, and indeed, the words "well regulated" indicate that anything did not go. Further, the provision was clearly talking about arms that one would "keep and bear"-- language that doesn't seem particularly applicable to a gigantic missile that one would need a huge truck to move.

These things are usually a matter of common sense. There are some close calls with respect to weapons that one may plausibly "keep and bear", but which the government contends individual possession of which is not necessary to the security of the free state. But this is no different than many constitutional provisions-- you have a clear core meaning, and then some tough cases that straddle the line.
10.26.2005 5:28pm
Clayton E. Cramer (mail) (www):

That's interesting; I thought the argument was that the army leaders themselves would overthrow the civilian government. I'd never heard it mentioned that the Framers were worried about the President himself taking over the whole thing. Geez, did these guys have any historical precedents besides late Republican Rome?
They might well have been concerned about the military taking over, but all the arguments are phrased in terms of the President taking control. Cromwell is another historical precedent to which they paid attention. Cromwell wasn't a dictator, exactly, but the actions of the New Model Army in Ireland were pretty worrisome.

There's a more positive side to this. From a blog entry a while back:

Organization of the Militia

In looking through American State Papers: Military Affairs, I found a very interesting 1790 report titled Organization of the Militia (starting here) by Secretary of War Henry Knox. President Washington sent it on to the Congress to assist them in developing a federal militia law. It captures well the view tht people like Washington and Knox had about the milita. This excerpt is from page 7:

The strength of the Government, like the strength of any other vast and complicated machine, will depend on a due adjustment of its several parts: its agricultre, its commerce, its laws, its finance, its system of defence, and its manners and habits, all require consideration, and the highest exercise of political wisdom.

It is the intention of the present attempt to suggest the most efficient system of defence which may be compatible with the interests of a free people--a system which shall not only produce the expected effect, but which, in its operations, shall also produce those habits and manners which will impart strength and durability to the whole government.

The modern practice of Europe, with respect to the employment of standing armies, has created such a mass of opinion in their favor, that even philosophers and the advocates for liberty have frequently confessed their use and necessity in certain cases.

But whoever seriously and candidly estimates the power of discipline, and the tendency of military habits, will be constrained to confess, that, whatever may be the efficacy of a standing army in war, it cannot in peace be considered as friendly to the rights of human nature....

An energetic national militia is to be regarded as the capital security of a free republic, and not a standing army, forming a distinct class in the community.

It is the introduction and diffusion of vice, and corruption of manners, into the mass of the people, that renders a standing army necessary. It is when public spirit is despised, and avarice, indolence, and effeminacy of manners predominate, and prevent the establishment of institutions which would elevate the minds of the youth in the paths of virtue and honor, that a standing army is formed and riveted for ever.

While the human character remains unchanged, and societies and governments of considerable extent are formed, a principle ever ready to execute the laws, and defend the state, must constantly exist. Without this vital principle, the government would be invaded or overturned, and trampled upon by the bold and ambitious. No community can be long held together, unless its arrangements are adequate to its probable exigenceies.

If it should be decided to reject a standing army for the military branch of the government of the United States, as possessing too fierce an aspect, and being hostile to the principles of liberty, it will follow that a well constituted militia ought to be established.
This is a report authored by Secretary of War Henry Knox in the Washington Administration--and these are generally considered among the stronger advocates of a standing army.
10.26.2005 5:31pm
Clayton E. Cramer (mail) (www):
Shelby asks:

The fact that it was permitted does not mean it could not be prohibited. Are you aware of any pre-Civil War court cases that struck down restrictions on such cannon?
Are you aware of any pre-Civl War laws that restricted private cannon ownership?
10.26.2005 5:33pm
Dilan Esper (mail) (www):
Bob:

One example of a provision in the Constitution with a preamble is the Copyright and Patent Clause, which states that the purpose of the Congressional power to grant copyrights and patents is to "promote the progress of science and the useful arts".

This preamble has been used as an interpretative device in many cases. For instance, before Congress passed a statute in 1976 codifying the doctrine, the fair use of copyrighted material was justified, in part, on the premise that restrictions on such use would not promote the progress of science and the useful arts but rather retard it by depriving the public of uses of copyrighted material that would enrich public knowledge.

Similarly, the doctrines of copyright and patent misuse are premised on the idea that where intellectual property rights are used in a fashion that causes regress rather than progress in science or the useful arts, they may be restricted.

I am sure there are other examples of preambles in constitutional provisions, but that is the one I could think of off the top of my head.
10.26.2005 5:33pm
Shelby (mail):
I see conservatives spend so much ink and bandwidth on this issue, and yet the last time SCOTUS dealt with this was 1939.

Gadzooks, he's right! It's a good thing SCOTUS always gets out in front of these issues and issues rulings before the lower courts do, and before states pass problematic laws.

And if you think this is excessive, wait 'til we get started on the Third Amendment!
10.26.2005 5:35pm
Plainsman (mail):
Except that's completely inapposite. This is all about giving content to the preamble: it supplies a criterion for what sorts of arms are protected by the Amendment's guarantee. Weapons that are typically "borne" by "militia" members -- roughly, light infantry -- are protected. The debate should begin from that point.

One thing that's very clear: that part of the now expired 1994 "Assault Weapons" ban that prohibited civilian possession of new "military-style" semi-automatic rifles and pistols with standard-capacity ammo magazines was straight-up unconstitutional.
10.26.2005 5:38pm
Shelby (mail):
Clayton:
Are you aware of any pre-Civl War laws that restricted private cannon ownership?

No, but that's irrelevant to my point. I don't think cannon were "arms" under the Second Amendment, but the fact they could be prohibited doesn't mean they actually were. You could constitutionally prohibit driving SUVs in interstate commerce, but the lack of laws doing so proves nothing.

That said, maybe I'm wrong and cannon are in fact "arms". I'm fine with that; what's your view (which I know is more informed)?
10.26.2005 5:38pm
Harpo:
Gadzooks, he's right! It's a good thing SCOTUS always gets out in front of these issues and issues rulings before the lower courts do, and before states pass problematic laws.

Before ?
10.26.2005 5:39pm
Unamused:
Shelby, Clayton:

I only brought it up because Cromwell seems more the former than the latter. Maybe the distinction isn't that great in practice.
10.26.2005 5:41pm
Bob Bobstein (mail):
Dilan-- thanks for your response. My point is about the Bill of Rights, though, which is a series of terse statements preserving rights. I have a hard time signing onto arguments that say that that controversial first clause is the only legally meaningless part of the Bill of Rights.

Of course, even if we all agree that first clause should be Taken Seriously, it's far from clear how much, if at all, that changes the end result of what kinds of regulations are and are not unconstitutional.
10.26.2005 5:45pm
Shelby (mail):
Unamused:

I was thinking more of the later Cromwell, though admittedly it's not a clear-cut distinction.
10.26.2005 5:49pm
Clayton E. Cramer (mail) (www):

I see conservatives spend so much ink and bandwidth on this issue, and yet the last time SCOTUS dealt with this was 1939.

Are the NRA's lawyers that incompetent ?
It is a bit more complex than that. First of all, you want a sympathetic defendant--and you also want a purely federal case. I kid NRA lawyers I know that they really want a disabled black lesbian living in DC with a black powder single shot pistol who shoots a guy forcing entry who turns out to be a neo-Nazi carrying handcuffs and bottles of lye.

The fact is that throughout the history of gun control, our side wins a lot of battles at trial, and on appeal--and the really sympathetic defendants seldom make it to the Supreme Court. In U.S. v. Miller (1939), the defendant (who wasn't terribly sympathetic) wasn't even represented--the Solicitor General was doing a direct appeal from U.S. District Court, where the judge had ruled that the National Firearms Act of 1934 was a violation of the Second Amendment.

There's a sequence of events needed here.

First get the Supreme Court to make an unambiguous statement that the Second Amendment protects an individual right against federal violation, perhaps even finding that a particular law is "reasonable regulation," such as in USA v. Emerson (5th Cir. 2001).

Second, get them to strike down a federal law as unconstitutional. I would argue that the ban on loaded firearms in National Parks is a good candidate. (If you don't see the wisdom in striking down that law, think "Yellowstone grizzly bear.")

Third, bring them a case under state law, and get them to find it is incorporated under the Fourteenth Amendment--although that would require them to admit that "privileges and immunities" really did mean something. A good candidate might be California's current discretionary concealed handgun law, originally adopted as part of a 1923 law for which the stated purpose was disarming Chinese and "Latins."
10.26.2005 5:54pm
Clayton E. Cramer (mail) (www):

I am sure there are other examples of preambles in constitutional provisions, but that is the one I could think of off the top of my head.
There are, and Volokh has written a paper about other examples in state constitutions of the time. They never limit the meaning of the second clause.
10.26.2005 5:56pm
Dilan Esper (mail) (www):
Bob:

First, nice play on Ron Dworkin by capitalizing "Taken Seriously".

Second, I think preambles are very important, in the Constitution and in statutes, because they are a form of "legislative intent" that, unlike other forms of history, was actually agreed to by all of the framers.

As an example, the First Amendment we have makes no textual distinction between political and other types of speech. But imagine, instead, a First Amendment that read "The free exchange of political ideas being necessary to the survival of a free state, Congress shall make no law abridging the freedom of speech." I think that if that were what the provision said, courts would probably be less protective of artistic, erotic, or other non-political forms of expression than they are now. In contrast, if the text read "The absolute unrestricted right to say or otherwise express anything one wants to express, on any subject matter, being an inalienable individual right that is not subject to derogation by the state under any circumstances, even in the case where harm comes to another person as a result of such speech, Congress shall make no law abridging the freedom of speech", that provision would probably be interpreted to confer an even broader right of free expression than the First Amendment is interpreted as conferring.

Any time you have a legislative body (including the Constitutional Convention) expressing itself in the text regarding its intentions, that has to be taken seriously.
10.26.2005 5:58pm
Bob Bobstein (mail):
Clayton E. Cramer: Volokh has written a paper about other examples in state constitutions of the time. They never limit the meaning of the second clause.

Thanks, Clayton. I'll try to find it. You also dealt with the drafting evolution of the Second Amendment-- can you explain why it has the only legally meaningless clause in the Bill of Rights?

(Again, it's far from clear that deciding that the first clause is really really important produces a different outcome re Constitutionality...)
10.26.2005 6:00pm
Clayton E. Cramer (mail) (www):

That said, maybe I'm wrong and cannon are in fact "arms". I'm fine with that; what's your view (which I know is more informed)?
I'm not entirely sure. It is clear that Boston expected that cannon and mortars were owned by their citizens. I would agree that cannon might not qualify as "arms" in the sense of small arms. I'm not quite sure how portable mortars were in that era. (Probably less so than today.)

My point is that unless we can find a clear statement that X was prohibited, and X was present or known, we probably have to assume that X was recognized as a right. In some cases, we can find laws but they are not relevant anymore. Laws disarming slaves are common--but we don't have slaves anymore. Laws disarming free blacks seem, to my surprise, not to be present in 1791, even in the Southern states, which leads to some interesting challenges in the the 1840s in the southern state supreme courts, when free blacks challenge post-Revolutionary ed laws requiring them to get a license to own guns.
10.26.2005 6:01pm
Clayton E. Cramer (mail) (www):

Thanks, Clayton. I'll try to find it. You also dealt with the drafting evolution of the Second Amendment-- can you explain why it has the only legally meaningless clause in the Bill of Rights?
A number of people have commented about the significance of the "A well-regulated militia" part. As I mentioned above, this was a three part clause when Madison introduced it--and he did not intend it to be free-standing. His plan was to insert it into the text, in Art. I, sec. 9, which is generally an "individual rights" collection, not Art. I, sec. 10, which limits powers of the states, and which has a specific provision concerning the authority of the states to maintain troops. If the purpose was to protect the authority of the states, Art. I, sec. 10, cl. 3 would have been the obvious place.

The provisions requested by the states come in two large categories: clearly individual RKBA provisions, such as Virginia and New Hampshire; and guarantees that Congress's authority to keep a standing army would be limited. Some states requested that Congress be prohibited from keeping a standing army in peacetime, except with 2/3 vote of both houses. More often, these are "this is a good idea to rely on the militia" statements--with no real legally enforceable component.

Finally, to make the Quakers and other pacifist sects happy, Madison proposed a conscientious objector provision for militia duty.

Remember that most members of Congress thought this whole Bill of Rights matter was a bit of a waste of time, and even Madison was doing it primarily because he had promised the voters that he would lead such an effort if elected. Most Congressmen were doing it because several states had said, "We really want a Bill of Rights." At least two states had not yet ratified: North Carolina, and Rhode Island. While the RKBA wasn't the reason, both states when they did finally ratify included RKBA requests in a Bill of Rights.

There's considerable debate about the "well-regulated militia" part; and about the "religiously scrupulous of bearing arms" part--and almost no discussion at all about "right of the people to keep and bear arms." This was a formulation that appeared in a number of state constitutions of the era, where it is usually explicitly individual in nature (Pennsylvania's 1776 Constitution), and sometimes explicitly collective (Massachusetts, for example).
10.26.2005 6:15pm
big dirigible (mail) (www):
Magically defining cannon as "ordnance" (which is of course correct, but beside the point) so that they don't qualify as "arms" is mere sophistry. Recall that the whole thing started with Britain's attempt to confiscate "ordnance" supplies in Concord. We know that, historically, cannon were not only owned and used privately, but that the government depended on that private ownership to discomfit American's enemies. The armed ship has been mentioned before, by me and others. It was the strategic weapon of the day. A license was not needed to own or use it. A license was needed to make its use consistent with the laws of war and distinguish them from piracy when attacking French or British ships, forts, or settlements. A license was not required to fight brigands or pirates (including, I believe, the Barbaries, even though they counted as states).

And let's have no more appeals to "common sense" - clearly it's not common (as in, shared with others), when even the eighteenth century concept of "well-regulated" causes some of us sophisticated moderns so much confusion.
10.26.2005 6:24pm
Clayton E. Cramer (mail) (www):

We know that, historically, cannon were not only owned and used privately, but that the government depended on that private ownership to discomfit American's enemies. The armed ship has been mentioned before, by me and others. It was the strategic weapon of the day. A license was not needed to own or use it.
You did need rather a lot of money, however, which is part of what makes the "nuclear weapon" horrible not very relevant. There are probably about 200 people in the United States who could afford to buy a nuclear weapon--and they can generally buy Congressmen by the gross. What do they need a nuclear weapon for? Any private party who obtained a nuclear weapon would almost certainly be removed from circulation by the government regardless of the laws.
10.26.2005 6:28pm
big dirigible (mail) (www):
The preamble to the second amenment is not "the only legally meaningless clause in the Constitution", because it's not meaingless. It means that the provision is important - it's not about hunting or fishing. Far-fetched? Consider ATF's "suitable for sporting use" standard when deciding what guns the great American public should be allowed to buy.
10.26.2005 6:29pm
big dirigible (mail) (www):
Whether we think it's a good idea for wealthy collectors or anyone else to own a nuclear device is beside the point. The question is, is it constitutional? Should our masters offer a revised amendment, something nice and clear tacked onto the end of the Second, maybe "'arms' includes all small arms and crew-served weapons, but NO NUKES", there shouldn't be much trouble getting two-thirds of the states to ratify it. Thus would the Constitutional issue be resolved.
10.26.2005 6:34pm
Publicola (mail) (www):
Mr Cramer,
You don't have to look too hard to find someone who thinks all regulation of arms is constitutionally prohibited. well let me clarify that - all prior restraint based restrictions on arms is constitutionally prohibited. All you have to do is look me up. :)

First a touchy area - what constitutes arms? I think we can agree that arms capable of being carried &used by an individual generally have some military utility &would fall under the decision in Miller (after all, what small arms could not be useful to a militia in its proper role?) but i should point out that there was an 18th century equivilent to tanks - it just operated on the seas rather than land. The ocnstitution states that congress can issue letters or marque &reprisal. That seems ot me to be an implicit admission that armed vessels were in private hands &no one was terribly bothered by it. To have any chance of executing a letter of marque those privately owned ships would have ot have, among other thing, some serious cannon. Now cannon may be operated by an individual (though they're best employed by a crew) it'd be folly to assume that even a strong man could transport one without the aid of some sort of transport (like a team of mules) or a ship. &looking at the latger picture, the heavily armed ship cannot be captained by a single person.

So personally I'd be alright with saying that only arms capable of being operated by an individual for use discrimnatly against another individual are protected under the 2nd amendment. But being honest I'd concede that there is a good argument for crew served weaponry in private hands.

Besides, it's legal to own a tank now- you just have ot jump through some hoops to have its gun operational.

Getting to DE's main focus - "well regulated" simply means that - regulated to an effecient purpose. On policy grounds I'd argue that registration, background checks &other prior restraint based laws concerning possession were not conduscive to the proper end, but I don't need to go there.

The first part of the 2nd amendment confers no power tot he feds at all. It merely explains the purpose of the second part. Prof. Volokh discussed this before &explained it as an explanatory cluase followed by an operative clause. If anything it implies that proper regulation of the militia is essential, but that does not exlictly or implicitly make the individual subject to "reasonable" gun control laws.

It's not that the absolutists won't look at or acknowledge the first part of the 2nd amendment, it's just that we won't give it weight where none is due. It is strictly there to explain the purpose of the guarantee that every person will be secure in having their own arms, not to justify or except any part of said right.

But in general, especially at the federal level, no prior restraint based gun control (bans on possession, background checks, restrictions to possession, etc...) passes constitutional muster. At the least they tend ot have a chilling effect or the potential for an infringement, &at most they prohibit a person's excericise of the right to arms.

Whether this is good policy or not (for example allowing violent ex-cons to buy belt fed machine guns) is debatable, but if it's not a good policy then we need to change the amendment, not say that the framers coudn't have meant what they wrote.
10.26.2005 6:43pm
PersonFromPorlock:
It's striking that places which have gun control usually also have knife control, tear gas control, bludgeon control and rock control. This suggests that the motivating factor for such laws is less a fear of firearms than of a public which, given an opportunity, will devolve into chaos.

This doesn't argue well for a state's putting much faith in its citizens' capacity for self government and, unsurprisingly, gun control is at its strongest in 'nanny' states.

The real purpose of the Second Amendment is to ensure the Sovereign -- the people -- the power to remove an insubordinate government. It is a reminder to both the people and the state of who is boss, which is why it is disliked both by ambitious states and timid citizens.
10.26.2005 6:48pm
Clayton E. Cramer (mail) (www):

but i should point out that there was an 18th century equivilent to tanks - it just operated on the seas rather than land.
You don't get far inland with a ship. That's one reason that the Constitution limits Congressional authority on spending for the army, but not the navy. See Art. I, sec. 8:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;
The navy made a lousy instrument for imposing tyranny on the people, because they couldn't project force more than a couple miles from navigable waterways. Sure, Marines could land, but without naval cannon to back them up, the militia would wipe the Marines out in short order. I suspect that if the Framers had known about the future of aircraft carriers, they might have limited navy appropriations as well.
10.26.2005 6:51pm
Clayton E. Cramer (mail) (www):

It means that the provision is important - it's not about hunting or fishing.
Yup. As Congressman Bob Dornan observed some years ago, the Second Amendment wasn't about making Huey, Dewey, and Louie into orphans, but about shooting corrupt governments. Some state supreme courts used the "militia arms only" argument to justify bans on Bowie knives and small pistols in the nineteenth century, but this runs contrary to the other common theme: the right of individual self-defense.
10.26.2005 6:54pm
Richard Bellamy (mail):
State constitutions also specify things like freedom of speech and of the press. What's your point?

My point is simply that if all the state Constitutions said it protects the freedom of "speech and other expressive conduct," but the Federal constitution only protected "speech," that would be an argument that "speech" does not include "expressive conduct."

Similarly, if the state Constitutions all protect "an individual's right to bear arms," and the federal Constitution protects "the right to bear arms", that is evidence that the federal government does NOT protect an individual right.

Not conclusive proof, of course, but I would weight it in the "against" column. Prof. Volokh has weighed it in the "pro" column, which I don't think is logically correct.
10.26.2005 6:54pm
A.N.:
How about giving credit where it's due? Point (1) is derived entirely from Akhil Amar's work.
10.26.2005 7:06pm
Dilan Esper (mail) (www):
Publicola:

You are contradicting yourself. If the preamble is "explanatory", then it can't be true that no "weight" is "due" it. We very rarely get explanations from legislatures as to what they intend to do (as opposed to more ephemeral estimations of intent such as committee reports and historical usage of terms), so when we do get them, we should use them.

They are explaining the right to keep and bear arms by placing it within the concept of securing the free state. I think we agree on that. But they are also explaining the right to keep and bear arms by placing it within the concept of a "well regulated" militia. I find all these historical assertions about how "regulated" doesn't mean anything to be quite artificial. As I said above, the concept of a militia, by its very nature, involves regulation through a structure of command. (I might also add that in the American constitutional context, it is bound by the rules set by the legislature as well. See Art. I Section 8— Congress has the power to make rules for captures on land and water.) Everyone knows what a well regulated militia means— a lot of folks just won't admit it because they don't like the meaning.

Let me give you some other examples of "well regulated" that show your position that the words are meaningless or carry no interpretative force is without merit. I have already mentioned military commands. It is quite clear that if you don't carry the weapon that the commander orders you to carry, or carry a weapon he tells someone else to carry, you can be constitutionally punished.

Another is rules of capture, as mentioned above. Congress has the explicit power to tell the militia how and when it may make captures and what it must do with the prisoners. As part of this power, Congress could, for instance, require that only certain arms be utilized in the control of prisoners.

Another is treaties that restrict the possession of armaments in truce zones. The legislature can tell the militia that it has to disarm in certain areas pursuant to the treaty power, and the militia has to obey. Further, I would think that a commander of a militia could also make an informal cease fire or "lay down your arms" agreement, and that would be enforceable as well.

All of these things were permissible means of regulating the militia AT THE TIME THE CONSTITUTION WAS ADOPTED. Now, you are still going to tell me that "well regulated" admits of no gun control?
10.26.2005 7:10pm
Brett Bellmore (mail):

Gadzooks, he's right! It's a good thing SCOTUS always gets out in front of these issues and issues rulings before the lower courts do, and before states pass problematic laws.


I think it's pretty clear that, so long as the lower courts refuse to uphold the 2nd amendment, the Supreme court is content to let them take on the dirty work of killing it off by the death of a thousand cuts. In fact, the Supreme court has been presented with many suitable cases, and has uniformly refused cert. without explaination to every last one. I suspect they will only grant certiori when a lower court actually upholds the 2nd amendment, forcing them to act lest some Americans have this right restored to them.
10.26.2005 7:29pm
ShelbyC:
Dilan: Explaining is not the same thing as limiting, right?
10.26.2005 7:29pm
Dilan Esper (mail) (www):
Shelby:

Explaining means assisting in the interpretation. But I think the comments of some are born of a desire that explaining might mean expanding but can never mean contracting. And that's not how interpretation works. We don't, for instance, consult the comments of legislators or the historical meanings of terms only when they serve the position that we wish to take. A lawyer in court may do that for the benefit of his or her client, but that's not the way judges and citizens should interpret constitutional provisions.

So by explaining the provision, the preamble can broaden, narrow, or have no effect on the interpretation of the provision unadorned. Refer to my post above with two hypothetical versions of the First Amendment, which shows conclusively that a preamble can cause one to adopt a narrowing or a broadening interpretation of a text.
10.26.2005 7:53pm
A Guest Who Enjoys This Site:
What I find interesting is the continuing assumption that 'regulated' means a 'restriction' on what could be carried.

The term 'militia' was first used during the Spanish Armada crisis to designate the entire of the armed citizenry. Fine. If we generally agree that militia was and is defined as every able-bodied male citizen (now, simply every able-bodied citizen). We see that the intent was that individuals were guaranteed the right to keep and bear arms so that the government could quickly put together an 'organized militia;' the formation of an organized militia being in response to a situation being predominantly an emergency measure, thus suffering time-constraints inconsistent with stopping to properly train citizens in the use and maintenance of their arms. Note that the title "Minutemen" was adopted as a 'self-explanatory' appellation.

In a modern sense, this has led to modern 'background checks' as being acceptable largely on the assumption that it is a 'reasonable' means to ascertain the 'fitness' of the individual to own arms insofar as physical limitation such as adjudicated 'mental incompetence;' but also to address subsequent legislation preventing convicted felons from owning firearms. Adjudication of "mental incompetence' not being a derivative of the "well-regulated" language, but one informed, at least in some measure, by the definition of militia vis a vis "able-bodied."

Background checks and the definition of militia have nothing to do with the intent of the language 'well-regulated.' Throughout the history of the colonies, the assumption was that individuals required arms for hunting and defense. Thus, there was an implicit assumption and explicit requirement that individuals be able to use these arms competently. As a case in point, in 1631, Virginia required colonists to engage in target practice on Sundays and "to bring their peeces [sic] to church." In 1658 Virginia required every householder to have a functioning firearm within the house. [see Hening (1823), The Statutes at Large: Being a Collection of All the Laws of Virginia from the First Session of the Legislature in 1619]

Preceding adoption of the Constitution, Richard Henry Lee in Letters from the Federal Farmer to the Republican was concerned over disarmament of the people by "modeling the militia...the Constitution ought to secure a genuine, and guard against a select militia...to preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them ." [italics and emphasis mine]

In the calls for a bill of rights, among other issues, Virginia and North Carolina proffered the following language: "...that the people have the right to keep and bear arms; 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." [again, emphasis mine]

There are more examples, but the point is sufficiently made. "Well-regulated" intentioned that individuals know how to use and maintain the arms, not that the arms should be restricted as to what was available. As we see above, what arms to make available insofar as constituting a sufficent adherence to the intent of being able to form an effective, organized militia in a short period of time might be debated. But, such a debate cannot be premised on the phrase "well-regulated" as regards the rationale behind the phrase.

And, before someone attempts it, being 'trained' in the use and maintenance of the arms was not the intended "end" vis a vis trained in their use but stored or kept by the government. In fact, in 1673, Virginia even passed legislation requiring the government to purchase firearms for citizens too poor to buy them; provided the individual was required to pay a fair price for the arm when they were able to do so. Thus, the intent was to provide for an absolute right of individuals to keep and bear arms and it was a shared responsibility of the individual and the government to make sure they could use and maintain them appropriately.

How does this jibe with today's ever increasing restrictions on how and where individuals are able to use or practice with their arms?
10.26.2005 8:26pm
Dilan Esper (mail) (www):
A guest:

This is neither here nor there, but I never thought the "militia comprises all able-bodied men" between certain ages constituted a very good argument, precisely because if you are going to tether the meaning of "militia" that precisely to history, then it would seem there is NO right of the aged, women, or the disabled to bear arms. Now it is true that the equal protection clause can come in and save you on gender (but not age or disability), but only if you adopt the exact opposite method of interpretation and interpret the provision AHISTORICALLY. (The original intention of the provision was that it would not bar gender discrimination.)

In fact, I think that the Congressional practice of defining the militia is very much a double-edged sword for pro-Second Amendment advocates-- what if Congress wanted to cut it to 18 to 40? 21 to 35?

I think it is much more plausible to rely on "right of the people" to define the scope of the right. All the people hold it (not collectively, but individually). Just as similar right of the "people" language in the Fourth Amendment means every individual has the right not to have his or her houses, persons, papers, and effects unreasonably searched.

More generally, I think you are surmising way too much about the INTENTION of the words "well regulated". In interpreting a text, you must start at the text. Sources of intention outside the text only matter if the text is ambiguous. Further, just because you can point to certain types of regulations that were in effect at the time the Constitution was written doesn't mean other regulations were not also permissible, any more than the fact that capital punishment by hanging and by firing squad were permissible at the time the Constitution "proves" that lethal injection or the gas chamber is unconstitutional.

It is much more plausible to read the text than to get into a silly debate based on selective history of how different people at different times before our country's founding viewed the issue of an armed populace. The text says that a well regulated militia is necessary for the security of a free state. It doesn't say any militia and it doesn't say an unregulated militia. If you are presented with a regulation where there is a definitive historical pedigree as to whether it is permissible or impermissible, I am not averse to looking to that. But with respect to most regulations, where the history is either silent or ambiguous on the specific regulation, the text asks us to determine whether the regulation is consistent with the premise of an armed populace that protects the security of the free state. It's not that hard to interpret, as constitutional provisions go. All of the quasi-historical attempts to read the mandate for regulation out of the Amendment are way too esoteric.
10.26.2005 8:39pm
Shelby (mail):
Just to be clear, I'm not ShelbyC. Well, actually I am, but that's not my "name" here.

My "Gadzooks" comment was meant as a sarcastic jibe - plainly the SCt has little desire to delve into 2nd Am. law, though it may have to soon with the circuit split. But we were chastised earlier for spending so much time on this issue when the SCt hadn't visited it lately. Oh, well, never mind...
10.26.2005 8:40pm
Justin (mail):
Since we're all off Professor Volokh's context and now talking just in terms of originalism, and since many of you have come up with quite arbitrary and silly definitions about what is an arm, I think we should all acknowledge that there is only one TRUE originalist definition of what is an arm.

It is an arm if

1) The weapon itself (don't think gun, think Bombardier or Grape-shot) was technologically in existance in 1787.

2) The weapon itself was considered arms, of or not of the type a militiaman would own.

In other words, cannons in, handguns out.

Preposterous? That's originalism.
10.26.2005 8:47pm
A Guest Who Enjoys This Site:
Dilan Esper:


...It is quite clear that if you don't carry the weapon that the commander orders you to carry, or carry a weapon he tells someone else to carry, you can be constitutionally punished.

Another is rules of capture, as mentioned above. Congress has the explicit power to tell the militia how and when it may make captures and what it must do with the prisoners. As part of this power, Congress could, for instance, require that only certain arms be utilized in the control of prisoners.

Another is treaties that restrict the possession of armaments in truce zones. The legislature can tell the militia that it has to disarm in certain areas pursuant to the treaty power, and the militia has to obey. Further, I would think that a commander of a militia could also make an informal cease fire or "lay down your arms" agreement, and that would be enforceable as well.



These rules refer to an 'organized militia;' i.e., one which has been governmentally organized in response to a specific situation. They DO NOT refer to the 'militia' insofar as "every able-bodied citizen" or one composed of "the body of the people." Having 'commanders,' making 'captures,' controlling 'prisoners,' along with treaties arranging 'cease fires' all indicate "emergency" situtaions where the government has organized a group or groups of able-bodied citizens (militia) for a specific purpose. Thus, when legislatures order disarmament, what they are ordering is the disbanding of the 'organization.'

In a sense, your arguments are predicated on a blurring of the militia with 'organized' militias (e.g., today's National Guard).

You have legitimate areas where issues of 'gun control' may be debated, but it does not derive from the language "well-regulated." In fact, there is some debate as to what part of the language actually constitutes the 'preamble.' According to Wikipedia:


There is some question as to whether the Second Amendment contains a comma after the word "militia", and a parallel debate as to whether the presence or lack of this comma influences the overall meaning of the Amendment.

Both the U.S. Senate Journal and the Annals of Congress show the final version of the Second Amendment as not containing this comma. On September 25, 1789, the completed Bill of Rights was written to parchment by a House scribe. In this version, now held by the National Archives, the comma was inserted. All other surviving original texts of the Bill of Rights, including the copies sent to the states for ratification, do not contain the comma.

Comparing versions of this and other Amendments as officially enrolled in the journals, as they were progressively modified and sent between chambers, shows that scribes of the era took liberty with the capitalization and punctuation of text they wrote.

The U.S. Government is inconsistent in the use of the comma in publications. The Statutes at Large (the official permanant record of all laws enacted) does not include the comma [2]. The Government Printing Office (GPO) has produced versions both with and without this comma.

[http://en.wikipedia.org/wiki/
Second_Amendment_to_the_United_States_Constitution ]

Given Clayton Cramer's expertise, perhaps he can enlighten us on this issue.
10.26.2005 8:53pm
A Guest Who Enjoys This Site:
Dilan Esper: In so far as the text...

Intent informs meaning and meaning defines purpose. You cannot ignore the intent without de facto making the text open to the ambiguities of interpretation and, thereby, blurring purpose. Therefore, a strict and uninformed reading of any text allows for a 'pernicious plethora of potential pontifications as pertaining to purpose.' In a very real sense, plain language is used to represent plain intent. Thus, meaning and purpose are derived from the intent the language is used to represent.
10.26.2005 9:02pm
Dilan Esper (mail) (www):
A Guest:

1. The principle that you don't look beyond the text unless there is an ambiguity is well-established, is the law of the land in the United States through numerous Supreme Court decisions, and is well-justified, because all secondary sources of intent are both manipulable and less accurate as compared to a legislative statement of intent in the language of the enactment itself.

2. I don't think it matters whether a comma appears in the text. The first clause of the Second Amendment is clearly a statement of legislative purpose and cannot be read out of the provision.
10.26.2005 9:18pm
Dilan Esper (mail) (www):
A Guest:

One other thing. The problem with the "unorganized" militia argument is it is completely inconsistent with the interpretation that allows you to read the words "well regulated" out of the Amendment, i.e., that regulated means "ordered". If only the ordered, organized militia is "well regulated", then only it is necessary to the security of the free state, and the unorganized militia may be completely done away with. What you have left is the collective right to bear arms.

In order for the right to be an individual right, "well regulated" cannot equate to ordered or organized but must apply equally to the militia whether or not organized. And then, it has to permit reasonable regulation.

Again, I hate to sound like a broken record, but every single one of these arguments is make-weight-- they are all just attempts to ensure that two words-- "well regulated"-- do not have their obvious meaning.
10.26.2005 9:22pm
billb:
Anyone (Clayton and Dilan I'm looking at you guys here) care to make a comment on whether or not the bearing of arms other than firearms is constitutionally protected? I.e., where do we stand with respect to sticks, clubs, knives, swords, slingshots, halberds, polearms, battering rams, etc.? I have a contemporary interest in swords (know how to use 'em) and knives (carry one daily).
10.26.2005 9:41pm
A Guest Who Enjoys This Site:
Dilan Esper: Nice try at 'twisting' the arguments. However...

1.) The history of debate related to the 2nd Amendment well establishes that there is a perceived ambiguity to the text. This ambuiguity stems from the definition of "ambiguous;" i.e., the plethora of arguments, even in this thread, that the phrase is 'open to interpretation.' In fact, the argument you posit for acceptable restriction/regulation is based on an interpretation which is inconsistent with original intent in as much as that intent actually provides meaning to the phrase you rely on and, by default, the purpose of the entire Amendment. Therefore, even by your own admission, one must look beyond the text itself.

2.) A good part of the ambiguity of the 2nd Amendment stems from the "legislative purpose" assigned to the phrase "well-regulated." Thus, the placement of the comma is material. In fact, your very assertion of a "legislative purpose" relies on an interpretation of the text which goes beyond the text itself. This is the source of ambiguity. Even if we agree that a 'legislative purpose' is implied by the text, we MUST go outside of the text itself to determine the intended purpose.

You have already gone beyond the text in an attempt to justify 'well-regulated' as being synonmous with 'restrictions' for the legislative purpose you infer from the text. As I have pointed out, this is an interpretation based on an erroneous reading of legislation and history along with a blurring of definition. Further, I have demonstrated the stated intent of those individuals directly involved in colonial legislation and in the creation of the Bill of Rights itself was to provide for "competence in use and maintenance" not "restrictions of ownership."

3.) I do not 'read well-regulated out of the amendment.' In fact, I do precisely the opposite. I point to the very existence of the phrase as intrinsic to the Framers' desire for individuals to have access to, own, and bear arms; inherent to this desire was the assurance and stipulation that these individuals be allowed, whether through individual use or training, a level of competence in the use of arms and their maintenance. Such a citizenry, individually possessing of arms and competent in their use, allows the government, in times of crisis, to quickly organize "the body of the people" (militia) into an 'ordered' group to be utilized for a specific purpose.

In a different turn of phrase, the intent of the text "well-regulated," as I demonstrate it, is an intrinsic and necessary component in defining the right to keep and bear arms as an unassailable, individual right; an individual right which simultaneously serves the needs of the individual for practice, hunting, and defense while providing for the collectve need of the group in a crisis. Thus, the collective good is predicated on the maintenance of the individual right. Not the other way 'round.

Remember, a large, standing army is a modern concept in U.S. History. Most of our past is based on the drafting, 'organizing,' of its citizenry into an 'ordered' force. Rogers Rangers was, in fact, a group of individual frontiersmen, proficient in the individual use of arms and woodsmanship, organized into a disciplined ('ordered') group to meet a crisis. The Minutemen were individuals, already in possession of firearms and competent in their use, organized into groups available for 'immediate deployment.' Ad infinitum.

Thus, based on the Colonial/Constitutional Debate discussions provided above, 'regulation' was NOT synonmous with 'legislation restricting the ownership' or 'legislative organization of a group.' "Regulation" was strictly intended to ensure that the individual was provided an appropriate arm, but was also provided some 'well-regulated/ordered/legislatively mandated' competence in the use and maintenance of that arm. There is absolutely NOTHING in the text or in the intent behind it which then suggests subsequent or permissible regulation of the 'organized' (i.e., grouped body of the people in time of crisis/emergency) or the 'unorganized' (i.e., the body of the people) militia.

I suspect that you deliberately misinterpret what I have said because your ultimate purpose is not to support the individual right to bear arms or demonstrate an originalist or original intent argument, based on relevant historical information, related to the 2nd Amendment. I divine that your purpose is to support a stance that 'restriction' is a Constitutionally acceptable outcome based on the meaning you ascribe to the text of the Amendment. The problem is that your purpose informs your intent and your intent defines your meaning.

Isn't that a bit backward? Isn't it supposed to be that intent informs meaning and meaning defines purpose?
10.26.2005 10:34pm
David M. Nieporent (www):
Richard,

Similarly, if the state Constitutions all protect "an individual's right to bear arms," and the federal Constitution protects "the right to bear arms", that is evidence that the federal government does NOT protect an individual right.

The hypothetical is counterfactual, of course, since the federal government does protect an individual's right to bear arms. It says "the people," which as used throughout the BoR refers to individuals.

More importantly, it would hardly make sense to say that people wanted to prevent their state governments from disarming them, but were perfectly happy to let the federal government do so.

Not conclusive proof, of course, but I would weight it in the "against" column. Prof. Volokh has weighed it in the "pro" column, which I don't think is logically correct.

I don't think you're reading him correctly. He is citing this as evidence of what the current public will is ("evolving standards") regarding the RKBA as an individual right, not as evidence of what the words of the 2A mean.
10.26.2005 10:37pm
Dilan Esper (mail) (www):
billb:

I haven't thought much about it. I would be inclined to say that the question would be whether the weapons bear a reasonable relationship to having the sort of armed populace that will protect the security of a free state, and more esoteric sorts of weapons are not protected by the right to bear arms.

It is also plausible to say that the Second Amendment was mainly concerned about firearms, rather than "anything that could possibly be used as a weapon", even in a military context.

That said, certainly many of the weapons you list have historically been used in battle (though not much anymore), so there's certainly a historic argument that they may fall within the right.

But as Professor Volokh would say, my thoughts are very tentative on this issue.
10.26.2005 10:54pm
Dilan Esper (mail) (www):
A Guest:

Reading "well regulated" as a mandate to train the militia is ridiculous for at least two reasons. First, the Bill of Rights is a charter of negative rights. There isn't a single positive right in the bunch, so inferring a right of militia members to be trained (from a phrase that says "regulated", not "trained") is completely acontextual. Second, there is not a single definition of "regulated", from now or then, that means "trained".

Indeed, one sign that ALL these arguments are make-weights is that you folks can't even agree as to what "well regulated" means. It means this, it means that. The only thing it doesn't mean IS THE OBVIOUS PLAIN MEANING OF THE WORD "REGULATED".

Come on, admit it. You just don't LIKE the idea of gun regulation, so you do cartwheels to read the word out of the document.
10.26.2005 10:58pm
MartinCahill (mail):
I'm only posting to point out to all the fools writing things like, 'do you think tanks and ICBMs' should be legal to own?' that they ARE legal to own presently in almost every state. The tank itself is regulated only by weight restrictions for on-road use and the tanks main gun is a destructive device requiring a background check and $200.00 tax. An ICBM sans warhead is perfectly legal to own with no background check. Cannons of the type used during the Revolution and Civil War are legal with NO federal restriction, modern artillery is classed as a destructive device($200.00 + background check)but legal in most states. Machine guns are legal in most states, as are suppressors (silencers, for those of you who get all your gun info via Hollywood), short shotguns, short rifles ($200.00+background check), disguised firearms($5.00 tax + background check), flamethrowers (classified as agricultural equipment, no background check and legal in most states). One murder has been comitted with a registered National Firearms Act weapon, by a police officer(s.w.a.t.) in Ohio. He murdered a drug dealer with his privately owned submachinegun. One murder in MORE THAN 70 YEARS! BY A S.W.A.T. cop who had ready access to much more firepower than the .380cal smg he used. All the components of your worst nightmare are already legal almost everywhere- and they cause NO problems anywhere.
These are FACTS. Sorry if reality is scary.
10.26.2005 11:44pm
subpatre (mail):
Please everyone, knock off the "regulated" stuff. Dilan's right about using plain meaning, but then strangely tries to apply the word to another part of the sentence. Regulated's an inflected transitive verb applying to the noun "militia". Period.

A well beaten militia...
A well rewarded militia...
It doesn't matter what verb, its placement makes it apply only to the militia. Trying to apply 'regulated' to the 'bear arms' portion of the sentence makes only slightly less sense than applying to any other noun in the sentence, as in:
...well regulated free state...
...well regulated people...
...well regulated security... ad nauseum

In terms of the right of people to bear arms, regulated has no place. It's plain meaning may be appropriate to hash out in context of our non-existent militia, but not the peoples' rights.
10.27.2005 12:31am
A Guest Who Enjoys This Site:
Dilan Esper: Actually, if you'd care to read the quotes I provided above and look at the debates themselves (as I said, there's even more documentation available), the meaning I ascribe as to the original intent of "well-regulated" is PRECISELY the context and definitional quality in which the phrase was discussed and eventually parsed from. It is, in fact, your argumentation which is acontextual in that you are attempting to infer original intent and meaning from modern usage/understanding of words such as "regulated" and "militia," along with inferences deriving from falsely premised straw men; all the while, COMPLETELY ignoring the actual, documented discourse surrounding the creation of the amendment.

In other words, I start from original intent to inform my understanding of meaning and, thereby, defining the purposes intended. On the other hand, YOU start with the purpose of arguing that gun-control restrictions are necessary, desirable, and consitutional; therefore, your intent is to acontextually assign an "obivous, plain meaning" to the word 'regulated' based on that purpose and not on the original, intended meaning.

So, yes, I resist gun-control; at least insofar as it unreasonably and unconstitutionally restricts ownership and usage among the people. Unreasonably? The ultimate goal of most gun-control activists is the total elimination of the individual right to keep and bear arms. The interim goal is to narrow the choices of available weapons types and increase the difficulties and costs involved with ownership to the point of practical prohibition from ownership. Unconstituional? Very few of the pro-gun control arguments today are constitutionally defensible under original meaning/intent; particularly when the stated purpose is the eventual elimination of private ownership. Intellectual inconsistency runs prevalent in most pro-gun control rhetoric. They are the ones doing cartwheels to get around or distract from the original meaning, intent, and context of the 2nd Amendment. For, in the end, it is not the Constitution from which they derive intent and form meaning; it is their purpose which informs their intentions and their intent defines the meanings they present.

However, there ARE issues which can be effectively addressed in light of this original meaning and intent. If the 'legislative purpose' intended in the drafting of the 2nd Amendment was for "well-regulated" to mean that individuals must have a competence in use and maintenance of the arms they have a right to keep and bear, then hunter safety courses, concealed weapons permit courses, and even the firearms courses that I now understand are required in California for purchase of a handgun are all proper functions of the government. Not in their use as a restriction to ownership, but as originally intended benefits of ownership; benefits to both the individual and society. While one might argue, ad nauseum, over a 'chicken or the egg' scenario, there is NO constitutional prohibition against requiring that individual owners have a basic competence in use and maintenance. That does not mean an arbitrary standard or unrealistic expertise. It means a BASIC competence; which is consistent with many of the hunter safety/conceal weapons courses now out there. Further, a failure to demonstrate that basic competence does not preclude ownership, it actually confers a responsibility to strive for competence; responsibility of the individual to make the effort and responsibility of the government to provide or, at least, not prohibit the individual from making that effort.

This is something that I don't think even the NRA could object to. In the end, a firearm is a mighty inefficient club in the hands of someone who doesn't know how to use it. Likewise, a firearm which is not properly maintained is likely to be as dangerous to the owner as to an assailant; not to mention that it might not function at all.
10.27.2005 12:37am
A Guest Who Enjoys This Site:
subpatre: The problem is that we still have a militia if we accept the broad meaning given in the original context, i.e., the body of the people. This is the problem. You cannot definitionally separate 'the body of the people' (the militia) from 'the people.'

If we were to incorporate the definition instead of the word, the amendment would read - A well-regulated body of the people being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

If you go farther and reincorporate the originally intended meaning of well-regulated, you would see the amendment read - A body of people, competent in the use and maintenance of arms, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Such language is very close to that used by Virginia and North Carolina in the discourse surrounding the Bill of Rights, to wit:


...that the people have the right to keep and bear arms; that a well regulated milita, composed of a body of the people trained to arms is the proper, natural and safe defense of a free state.


This language was then parsed by Madison, incorporating proposals from other states, into:


The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service.


We then come full circle back to the language as it now appears. Therefore, grammatical deconstruction of the language does not obviate discussions as to definitional intent. In fact, it is such grammatical parsing which REQUIRES such discussion to derive intent so that we are informed regarding meaning of the plain text and, thus, understand the purpose of the Second Amendment.
10.27.2005 1:00am
Curtis Stone (mail) (www):
"1) The weapon itself (don't think gun, think Bombardier or Grape-shot) was technologically in existance in 1787.

2) The weapon itself was considered arms, of or not of the type a militiaman would own.

In other words, cannons in, handguns out.

Preposterous? That's originalism."

No, it's just preposterous. Basically, what you are saying is that the First Amendment protects the freedom of the press to print what they want using 18th Century printing presses...therefore, modern journalists have no First Amendment "freedom of the press". Likewise, the religion of Scientology is not protected under the First Amendment because it did not exist when the framers penned those words.

The Bill of Rights was designed as concretely establishing the limits of federal powers. The most important check on uncontrolled government (otherwise known as tyranny) was considered to be a populace armed with the current modern military weaponry. I've seen it argued that the Second Amendment only protected the right of the people to own the current issued individual infantry arms and not "crew served weapons" or vehicles (like tanks). I could see the justification for such an argument, but it still means that select-fire military assault rifles, light and medium machine guns, and handguns are protected by the Second Amendment...as well as grenade launchers, shoulder-fired anti-armor and anti-air weapons, etc.

Would the American populace be capable of "secur[ing] a free state" against the best equipped, best trained military in the world with bolt action rifles and shotguns?

That's preposterous.
10.27.2005 1:24am
Justin (mail):
So Curtis, you'll then admit that Atkins and Simmons were rightly decided? Oh, wait, no. "Cruel and unusual" only applies to the rack, I forgot.

The problem with originalism is it "is" preposterous, because it bases itself on unteneable principles of governance. It then "cheats" to get preferred policy outcomes and hopes nobody notices, but if they do, its very important to get all huffy-puffy and if you have to, to then go and talk about some arbitrary point or another (usually the principle of "avoiding absurdities")
10.27.2005 2:37am
Justin (mail):
Would the American populace be capable of "secur[ing] a free state" against the best equipped, best trained military in the world with bolt action rifles and shotguns?"

It's equally preposterous that we could do it with assault rifles and handguns. Which is about as equally preposterous as we'd need to do so. But that's purposivism, that's reading the purpose of the framers to fit into modern society. You've pretty much abandoned originalism when it failed to suit your purposes.
10.27.2005 2:40am
Inactivist (mail) (www):
The preamble to the Bill of Rights says it all:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.


The second amendment was intended to prevent misconstruction or abuse of the newly constituted government's powers. Further, the second amendment (as with all ten amendments) are declaratory with respect to the rights of the people and restrictive with regards to powers of the government. Otherwise, how could the BofR "prevent misconstruction or abuse of its powers"?

My point is that it tends to be counterproductive to argue about the wording of the second amendment. Simply put, and according to the plain meaning of the writings of the time, it's a limitation on goverment powers to deprive people of arms. Period.

Quibbling about the defintion of "arms" and "militia" and "well regulated", and the placement of a comma or two, while fascinating, tends to avoid the widely-accepted philisophical position at the drafting of the Constitution and BofR, which I think cannot be denied: That government power is ever to be limited, never to be trusted, and that a free people must always be able and prepared to bring an errant and abusive government back under control.

Accepting any significant restriction of ownership and use of military arms will reduce that ability, as it has in recent times.
10.27.2005 4:35am
Steph (mail):
Richard wrote


The problem is the second amendment is clear. Unless one thinks that the fifth amendment only protects against government searches of state office buildings and the first amendment only protects the right of the legislatures of the states to assemble. The "people" are the same group in all three amendments. They were drafted and passed at the same time.
10.27.2005 10:31am
Beau Sterling (mail):
A lot has been written here (all very interesting...Thanks, Eugene) about whether and what kind of restrictions or regulations are permissible with regard to various weapons (handguns, machineguns, crew-served weapons, tanks, ICBMs, nukes) under the Second Amendment. But I think an equally important question always also has to be asked: Who is imposing the restrictions, a state government or the federal government?

Setting aside for the moment the effect of the 14th Amendment, is it not at least facially plausible to say that the 2A prevents the federal government from placing any restrictions on the possession of any of these weapons but has no effect on the ability of a state government to pass any restrictions on individual possession it thinks necessary (consistent of course with its own constitution)?

Put another way, since the Constitution does not create the right to bear arms, but only protects it against infringement by the federal government, is it not left up to the individual states to determine the nature and scope of the right? (In the same way, states determine the scope of the bundle of rights we call property.) This would mean that the federal government is powerless to pass any restrictions on the individual possession of arms that are more restrictive than ("infringe") those passed by the state -- and certainly not any restrictions that would infringe on any right to bear arms guaranteed by the state's own constitution.

Practically, this means that if a state deems it prudent to allow its individual citizens to keep tanks and artillery (or tactical nukes) to guard against a highly unlikely, but always theoretically possible, federal tyranny, then the federal government could not prohibit it. Is this not consistent with the main (albeit not only) purpose of the 2A? Whatever the founders meant by well-regulated militia, it seems very unlikely that they intended the phrase to be an invitation to federal restrictions on the possession of arms by the citizens of the individual states.

With regard to the effect of the 14th amendment and how it might restrict the regulation of firearms, it seems clear from Eugene's post that it was intended to restrict the ability of the states, at the least, to strip individual citizens of the means of self-defense. Accordingly, I think it is a facially plausible argument that to the extent that the 2A applies to the states, it restricts state action less than it restricts federal action. That is, the states may not pass weapons regulations that meaningfully impair the right or ability of self-defense (e.g., D.C. style bans are clearly impermissible; some provision must be made for the carrying of firearms either openly or concealed; some provision must be made for weapons suitable for defending one's home or business against a racist mob...again we can debate where the line is drawn). On the other hand, there does not appear to be anything in the text or history of the 14th Am. that would suggest that the ability of the states to define the scope of the right to bear arms more generally was totally abrogated. Thus, the states would still be able to restrict individual possession of the kinds of arms suitable only for fulfilling the anti-tyranny purpose of the 2A.

Under this paradigm, where the line is drawn, would vary from state to state. Some current federal laws would have to be declared unconstitutional, at least in the many states that have a strong state constitutional right to bear arms or statutes that are less restrictive than federal law. Particularly onerous state gun control laws also would be unconstitutional. On the other hand, many state restrictions would stand (including, presumably most of the parade of horribles weapons cited by gun control advocates - bazookas, crew-served weapons, nukes). If there is to be a compromise on the 2A, perhaps this one is best, rather than a one-size-fits-all interpretation of the scope of the right applicable nationwide.
10.27.2005 10:45am
Steph (mail):
Dilan Esper wrote

The interpretative objection is that you can't go to the history when the text is clear. "Well-regulated" has a clear meaning, and it's not drills, etc. You have to give words their ORDINARY meaning, unless it is clear that some technical meaning is called for. This is Statutory Construction 101.>

That is true but you are not using the rules of gramer. "well-regulated" does not modify the right of the people, but the millitia. So the question comes up what is "A well regulated militia." It is one that is trained and officered by citizens appointed by the state. If the State of New York wants me and every other citizen of the state participate in the state militia, drilling reguarly under the instruction of oficers comissioned by the state, that is fine with me.



This might be more believeable if they didn't do it in detail in Art I Sec 8.



But this clause doesn't grant power to the states. That is done by Art I Sec. 8. This just defines the kind of millitia that is neccessary to the defence of a free state, which justifies the right to bare arms.



Yes the states have the right to assigne weppons to people as part of their millitia service to the state and they may regulate the state's property. But that is a far different thing than saying therefore they can regulate the owenership of private arms.



Again, read Art I Sec. 8
10.27.2005 10:51am
Steph (mail):
Dilas writes



This is exactly right, but you don't seem to see that it is the millitia and not the arms that the state has a right to regulate.
10.27.2005 10:59am
musterion (mail):
I always love these sorts of arguments with regard to originalism:


Shouldn't an originalist, like Scalia and Thomas, feel obligated to restrict any gun other than those in production at the time the amendment was passed?


By the same logic, freedom of the press would have to be limited to the kinds of press available at that time. So
if your newspaper is not being produced using 1780's technology, it can be restricted.
10.27.2005 11:23am
corngrower:
I am fast coming to the conclusion that people with the best educations in the law are the problem, not the solution. This debate is so simple. Read the words. Read the history. Understand how the Constitution was created.
2 cnd amendment; We dont want the man keeping us down so this is our protection from it.

Again, the bill of rights, stops,restricts,prohibits,bans,estops,severly castigates,the govt from doing stuff to the hood. Yo, man (govt) stay yo place from my biz!

Only someone schooled in law can so pevert and prostitute the language in such a fasion as to take a couple of sentences and reverse the meaning of the content
10.27.2005 12:39pm
Jake (mail):
In 1846, the SCOT of Georgia ruled that a law that forbade the carrying of concealed weapons was consistent with the US Constitution in Nunn vs. The State of Georgia:

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.

The cited case was chosen because it was so close to the 1848 date and because it cites half a dozen other cases in state Supreme Courts that come to a similar rulings.

It certainly does not seem that the "right to keep and bear arms" was seen as absolute in the mid-1800s among legal experts and judges. As the same can be said today, how could an "evolving standard" be used here?
10.27.2005 12:39pm
Andy Freeman (mail):
"A literate class of govt officials being necessary to the proper functioning of govt, the right of the people to own and read books shall not be infringed."

The above stipulates the "it's about the National Guard" argument (which is strange since the National Guard was created after the Civil War) and yet, it's pretty clear that none of the "it's not an individual right" folks would argue that the above does not protect individual literacy, book ownership, authoring, etc.

In other words, their parsing is driven by the subject, not the language.
10.27.2005 1:05pm
Philip F. Lee (mail):
On 18 September 1867 Maryland adopted a Constitution with a Declaration of Rights containing:
"Art. 2. The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding."
(ref: Maryland Constitution Declaration of Rights )

It wasn't until a year later that the Fourteenth Amendment was enacted which Mr. Volokh argues applies the right to keep and bear arms to the states, whereas Maryland incorporates the whole US Constitution in 1867. Don't you think Maryland's actions did the same thing? Or maybe you think there were parts of the US Constitition that they really didn't mean to include?

It would seem to me that Maryland has as strong a protection for the Right to Keep and Bear Arms as the US Constitution provides against the national government and had that protection a year earlier than the 14th Amendment was passed. Mr. Volokh should revise his web page State Constitution RKBA Clauses to acknowledge this Maryland provision.

Phil Lee
10.27.2005 1:25pm
Clayton E. Cramer (mail) (www):
I think we should all acknowledge that there is only one TRUE originalist definition of what is an arm.

It is an arm if


1) The weapon itself (don't think gun, think Bombardier or Grape-shot) was technologically in existance in 1787.

2) The weapon itself was considered arms, of or not of the type a militiaman would own.

In other words, cannons in, handguns out.

Preposterous? That's originalism.
Your factual assumptions are incorrect.

1. Militiamen who operated as calvary were required to own handguns.

2. It would be a strange sort of originalism that thought the First Amendment's protection of freedom of the press was limited to 1787 printing technologies, or that the guarantees about search and seizure were limited to colonial style homes, or that only religions in existence in 1787 enjoyed the protection of free exercise.

I understand that some people don't like originalism, because it limits the power of judges to make up the Constitution as they go along. But your notion of originalism doesn't have much to do with the position of originalists.
10.27.2005 1:28pm
Mike1111111 (mail):
Whew, took the time to read all the posts. Good thing because every time I said "Yes, but...." I would find the same thought a few posts down.

Some excellent thoughts and arguments. A very cogent point was made by Inactivist regarding the preamble and ultimate purpose of the BoR that is well known, but often overlooked in the minutia of the debate. The entire BoR is explicity intended as a restriction on the power of the federal government. The 2nd Ammendment must be read with that in mind. I can understand the discussion over the definition of "arms" and thus what is protected but not over the meaning of "shall not be infringed".
10.27.2005 1:33pm
Don Miller (mail):
I have enjoyed reading the many comments written here today. I wanted to put in my two-cents here.

I am a supporter of the 2nd Amendment. (wanted to make that clear from the start.

As one poster has already stated, private ownership of cannon, gatling guns, machine guns, explosives, tanks, flame throwers, rockets, is a reality. Civil War era and older are legal to purchase, own and use without restrictions. I have seen pictures of civil war recreationists with a line of cannon that stretched for 2 miles.

As seen here today, the phrase well-regulated militia is always a sticking point with people. What was a well-regulated militia? For that matter, what is a militia today? According the the USC Title 10, Subsection A, Part 1, Chapter 13, Section 311 (1/06/03)
(a) 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.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.

In otherwords,according to Federal law, most men in the country are in, or have been in the militia, whether they knew it or not.

What did the framers think a well-regulated militia was? I have seen an argument made that the most common regulations had to do with the personal equipment of the militia member. What equipment and weapons the militia member was required to show up with when reporting for duty. They also specified the condition of the equipment. That it all be well maintained and functioning. Most militia regulations specified that the member report with the equipment and arms of what would be considered a basic infantry soldier. Some groups organized around being cavalry or artillery units. Their militia members would be required to bring the special equipment that those units would need, in addition to the normal infantry weapons.

If we look to the modern Army, all soldiers, whether serving in front-line combat unit or not, have a basic load-out of basic equipment. This basic load-out is added to make specialized soldiers.

It could then be argued, that the 2nd Amendment allows ordinary Americans to have access to the basic weapons of a modern infantry soldier. Handguns, Automatic, Semi-Automatic, and bolt-action rifles, sub-machineguns, bayonets, grenade launchers, light machine guns, shotguns, would all be available for private ownership. Other items, not necessarily weapons, such as appropriate body armor, would also be available to the general public.

Crew-served weapons, ie heavy machine guns, artillery, tanks, APC's, armed helicopters and aircraft, armed ships, would be limited to private militia organizations that could show they had the manpower, training resources, and security measures to properly train with and maintain such equipment. Specialized weaponary such as MANPADS, AntiArmor rockets and missiles, could also be restricted to specialized militia organizations.

If the Federal Government restrictions on crew-served and specialized weaponary militias were so restrictive that only State Militias (ie National Guard Units) could meet the requirements, I doubt anyone could mount a successful constitutional challenge.
10.27.2005 1:39pm
Clayton E. Cramer (mail) (www):

Would the American populace be capable of "secur[ing] a free state" against the best equipped, best trained military in the world with bolt action rifles and shotguns?"

It's equally preposterous that we could do it with assault rifles and handguns.
It is? The military certainly has some pretty impressive weapon systems--and more importantly, a highly trained set of warriors--but that's not enough, for a couple of different reasons.

1. In urban combat, most of those weapon systems aren't terribly useful, unless you are prepared to start destroying whole blocks of buildings. In Iraq, a relatively small number of people--perhaps a few thousand--are making four provinces out of eighteen very, very difficult to control. That's a tiny fraction of 1% of the population (admittedly, with significant foreign assistance). Imagine what would be the result if the U.S. government were trying to maintain control with even 10% of the population actively fighting them in guerilla warfare. The military would win, but only by destroying sizeable parts of American cities.

2. It seems likely that any widely supported rebellion in the U.S. would have the sympathies if not the active assistance of large numbers of active military and National Guard members. Indeed, during the 1877 railroad strikes, National Guard members frequently refused to follow orders to fire on strikers, sometimes turning over their weapons to the strikers, and sometimes even joining the strikers.

If you are under orders to open fire, you are likely to obey those orders. If you don't, you are subject at least to court-martial, and more likely, summary execution by your commander. If there is little or no risk that the insurgents will kill you--and a high risk that your commander might shoot you for failing to fire--self-preservation will win over your sympathies most of the time. If the risk from the insurgents is comparable to the risk from your commander, the temptation to follow your sympathies is likely to rise, and change sides.

3. Most politicians at least want the illusion that they are doing what the people want. This is part of what caused East Germany to finally collapse--the remaining True Believer Marxists of the Honnecker government simply did not have the stomach to kill the huge numbers of East Germans that would have been necessary to restore order. It is very easy to rationalize that "this rebellion is just a few troublemakers" if the military can "clean it up" quickly. That illusion starts to go away when you find that the military is having to really fight to win, because they are confronting large numbers of well-armed insurgents. I can't really picture even President Hillary Clinton being comfortable that she is doing the right thing with a civil war where thousands die every week.
10.27.2005 1:55pm
Dilan Esper (mail) (www):
Steph:

The right to bear arms is granted in the context of forming a well regulated militia. That's what the preamble means. So your position amounts to the idea that to form a well regulated militia, we need to have unregulated gun ownership. That's a non sequitur.

Indeed, I think that's why most of these folks go to such lengths to deny the plain meaning of "regulated". They know it cooks their goose.
10.27.2005 4:00pm
Dilan Esper (mail) (www):
Mike and Inactivist:

The fact that the Bill of Rights restricts government power (very true) does not mean that there are no limitations on the rights contained therein. Indeed, even rights with NO preambles, such as the First Amendment-- which, as Justice Hugo Black used to (correctly) rant, has absolutist language-- have been interpreted as having limits. (Chaplinsky v. New Hampshire lists most of them-- obscenity, incitement, fighting words, defamation, etc. In addition, even fully protected speech may be suppressed when it is necessary to serve a compelling state interest.)

The Second Amendment confers an individual right to bear arms. I think the cases that hold otherwise are wrongly decided. But the question we are debating is how far that right extends. And just because the purpose of the Bill of Rights was to restrict the power of the government does not mean that all of its restrictions are maximalist, especially when we have a more specific statement, DEALING SPECIFICALLY WITH THE RIGHT TO BEAR ARMS rather than generally with the entire Bill of Rights, that the framers intended a "well regulated" militia.

Your argument about the preamble of the bill of rights would be equivalent to concluding that the Fourth Amendment, despite its explicit text, prohibits even REASONABLE searches and seizures by the government, because the overriding purpose of the Bill of Rights was to constrict government power. Just as in the Fourth Amendment example, we have an explicit textual statement.

I want to throw one other thing out on the table. I don't think that the Second Amendment would be absolute even if its preamble was deleted. The First Amendment, after all, is not absolute. Just as the courts can recognize categories of speech that are unprotected and categories of regulations that are outside the scope of the First Amendment's restrictions, they can do the same with gun control laws. Why am I wrong?
10.27.2005 4:10pm
Clayton E. Cramer (mail) (www):

The right to bear arms is granted in the context of forming a well regulated militia. That's what the preamble means. So your position amounts to the idea that to form a well regulated militia, we need to have unregulated gun ownership. That's a non sequitur.
First of all, no part of the Bill of Rights "granted" anything. These were recognition of rights that Antifederalists and Federalists agreed were retained by the people. Federalists said that they weren't needed, because the new Constitution didn't grant any authority that would impair any existing rights. Antifederalists said, "If they aren't needed, what's the harm in listing them?"

Secondly, the right to keep and bear arms was not limited to the context of militia duty. This right was recognized as a right of Englishmen by Blackstone, who was very influential in colonial legal education. There are plenty of legal commentaries and decisions in the early Republic period that clearly recognize that the right in question is not limited to militia duty--the few decisions that take your position on this are very much the exceptions, such as State v. Buzzard (Ark. 1842). While some courts take the position that the purpose of a RKBA (under either federal or state constitutions) was so that the militia could keep the government scared, even these acknowledge that the right is individual in nature. What arms were protected was under debate, but that the right was not limited to militia duty is clear enough. See Aymette v. State (Tenn. 1840). See State v. Chandler (La. 1850).

Indeed, I think that's why most of these folks go to such lengths to deny the plain meaning of "regulated". They know it cooks their goose.
Even if you accept that "well-regulated militia" meant one under control of a democratic government (which I agree is the only concept of "militia" that would make sense to the Framers--although such a government might be popular without being official, as in Massachusetts just before Lexington), it doesn't limit the nature of the right. In addition, there are a variety of ways of understanding the meaning of "well-regulated" based on common usage of the time.
10.27.2005 4:22pm
Clayton E. Cramer (mail) (www):

Indeed, even rights with NO preambles, such as the First Amendment-- which, as Justice Hugo Black used to (correctly) rant, has absolutist language-- have been interpreted as having limits. (Chaplinsky v. New Hampshire lists most of them-- obscenity, incitement, fighting words, defamation, etc. In addition, even fully protected speech may be suppressed when it is necessary to serve a compelling state interest.)
Agreed. There's an interesting exchange of letters between Madison and Jefferson which I discuss in For the Defense of Themselves and the State concerning this. Jefferson's view is that it was better to have a broad assertion of a right, while Madison in his letter of October 17, 1788, thought it was better to qualify the right carefully, out of fear that over time, the need to make exceptions not justified by the text would cause the entire right to be ignored:
Supposing a bill of rights to be proper the articles which ought to compose it, admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy.
Madison’s reluctance to draw the sort of strict line that Jefferson proposed may be seen in the qualifying phrases, “but in a manner warranted by law” in the Third Amendment, and such broadly interpretable phrases as, “Excessive bail,” “excessive fines,” and “without probable cause.” Yet other amendments proposed by Madison ring with Jeffersonian certainty:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments...

The right of the people to keep and bear arms shall not be infringed;...
10.27.2005 4:30pm
Dilan Esper (mail) (www):
Clayton:

With respect to the issue of what the Bill of Rights "granted", I think you are imparting natural law theory into the Constitution, a topic which is controversial and is beyond the scope of this discussion.

Nonetheless, even if you take out the word "granted" so as to avoid the discussion of natural law, the remainder of the post you were responding to is still valid-- the point I was trying to make is that just because the Bill of Rights was a negative charter does not mean that its protections do not have limits. And judging by your other posts, I assume you agree with this. Some others here do not seem to.
10.27.2005 4:40pm
Joshua (mail):
Clayton E. Cramer wrote:
In Iraq, a relatively small number of people--perhaps a few thousand--are making four provinces out of eighteen very, very difficult to control. That's a tiny fraction of 1% of the population (admittedly, with significant foreign assistance). Imagine what would be the result if the U.S. government were trying to maintain control with even 10% of the population actively fighting them in guerilla warfare. The military would win, but only by destroying sizeable parts of American cities.
Now that you mention it, I sure hope no one from al Qaeda is reading this thread and getting any ideas.

One thing that doesn't occur to many people on either side of the Second Amendment debate is that in this age of terrorism, the right to keep and bear arms for militia purposes is a huge double-edged sword. After all, when you think about it, aQ sleeper cells bear a striking, albeit superficial, resemblance to the Framers' concept of the militia: a collection of private individuals organized into a paramilitary unit in order to fight against an enemy government and its loyalists. Add in the fact that these aQ cells are recruiting more and more American citizens - who could take full advantage of the Second Amendment - into their ranks, and the dilemma becomes clear. By that I don't just mean the prospect of aQ using military-style weapons to commit terrorist acts, but also that aQ could arm itself to the point of becoming a full-fledged militia in its own right, dispensing with terrorism and graduating to a sustained guerilla-style insurgency on American soil, with an end result not unlike what Clayton has described above.
10.27.2005 4:48pm
Clayton E. Cramer (mail) (www):

With respect to the issue of what the Bill of Rights "granted", I think you are imparting natural law theory into the Constitution, a topic which is controversial and is beyond the scope of this discussion.
It is certainly controversial to modern intellectuals. What would have been controversial to the Framers is the notion that the Constitution did not reflect natural law theory. They grew up on Blackstone's Commentaries on the Laws of England:
By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it.
The Massachusetts Constitution of 1780 is also one of these "natural law" documents:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
Ditto for the 1776 Pennsylvania Constitution:
WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness.
Of course, you know what the Declaration of Independence says on the subject. I think you would be hard pressed to find too many documents of the time that specifically reject a natural law theory.

Intellectuals today must reject natural law theory because it is heavily tied to Christian doctrine popular at the time of the Revolution, and intellectuals completely reject Christianity all its baggage: original sin; right and wrong; universal truths.


Nonetheless, even if you take out the word "granted" so as to avoid the discussion of natural law, the remainder of the post you were responding to is still valid— the point I was trying to make is that just because the Bill of Rights was a negative charter does not mean that its protections do not have limits. And judging by your other posts, I assume you agree with this. Some others here do not seem to.
Agreed. The Framers were not fanatic ideologues. The purpose of government was to protect the rights of individuals. You can take good ideas about rights to absurd levels (for example, practically everything the ACLU crusades for) where the society and individuals are severely injured.
10.27.2005 4:55pm
duglmac (mail):
My take on this is that 'well regulated' suggests a meaning to the absolute protection in the second part of the ammendment. The main reason to allow 'the people' to keep and bear arms in the federal sense is to make sure that people know how to handle a weapon if they are called upon for service. The best way to do this is to make sure everyone has access to them at all times.

I think that what they had in mind was closer to what the swiss have implemented. Everyone goes through a period of mandatory military training, and then they go home, taking their issued gear and weapons with them.

It is also obvious, to me anyways, that the intent here was not to suggest that society was not to be able to regulate the uses of these weapons. Even in the military, a soldier cannot wantonly shoot anyone he wants, or use his weapon to facilitate a crime.
10.27.2005 5:05pm
Clayton E. Cramer (mail) (www):

One thing that doesn't occur to many people on either side of the Second Amendment debate is that in this age of terrorism, the right to keep and bear arms for militia purposes is a huge double-edged sword.
Actually, it also means that the U.S. government has authority to call up 40 million men to militia duty within the United States. At least half of those men are already armed.

After all, when you think about it, aQ sleeper cells bear a striking, albeit superficial, resemblance to the Framers' concept of the militia: a collection of private individuals organized into a paramilitary unit in order to fight against an enemy government and its loyalists.
One huge difference: the number of people in those sleeper cells in the U.S. is probably about as many men as fought on Lexington Green in 1775--and the government is doing a pretty creditable job of arresting members. (I would be happier if they were doing a serious job of keeping them from entering the country.)

Add in the fact that these aQ cells are recruiting more and more American citizens - who could take full advantage of the Second Amendment - into their ranks, and the dilemma becomes clear. By that I don't just mean the prospect of aQ using military-style weapons to commit terrorist acts, but also that aQ could arm itself to the point of becoming a full-fledged militia in its own right, dispensing with terrorism and graduating to a sustained guerilla-style insurgency on American soil, with an end result not unlike what Clayton has described above.
How long do you think it is going to take for al-Qaeda sleeper cells to reach even .01% of the population? And what makes you think that disarming the loyal citizens of the U.S. is going to make a significant impact on how well-armed al-Qaeda sleeper cells are? Gun control advocates like to claim that gun control can work because most of those who misuse guns really aren't very motivated to get guns. This is nonsense, as an examination of the criminal histories of those arrested for murder shows, but it is especially absurd with respect to al-Qaeda.

You do make a strong case for why the government should make a serious effort to stop terrorists from entering the U.S., and put serious effort into infiltrating Islamic terrorist groups in the U.S. (much as it would offend the ACLU). Bush, unfortunately, is too busy playing domestic politics to pursue this rather serious problem--especially when you consider that at least one al-Qaeda operative was arrested some months back who entered the U.S. illegally across the Rio Grande.
10.27.2005 5:06pm
Joshua (mail):
Clayton: As you pointed out previously, it only takes a small number of skilled, determined insurgents to wreak a lot of havoc, and .01% of the U.S. population is still roughly 30,000 people, which as a potential guerilla force is hardly anything to sneeze at. Also, our nation's prisons (which house around 1.5% of the U.S. population IIRC) are already notorious as hotbeds for Islamic-supremacist imams converting alreay-disgruntled American prisoners to Islam, then indoctrinating them into Islamic supremacism and the imperative to wage jihad against the rest of us. I don't know about you, but I sure don't relish the prospect of hardened criminals, much less Islamic supremacist ones, organizing into militias, no matter what their sheer numbers may be.

Anyway, to get back on topic, what I pointed out in my first post is not necessarily a case for gun control. It's more like a commentary on the best-laid plans of mice and Constitution-framers. Whether it actually happens or not, the potential is definitely there for the same Second Amendment provisions for arming a "good" militia against a runaway gov't to also be exploited by an "evil" militia against a legit gov't, and/or against the populace in general. If it's not al Qaeda, it could be someone else in the unforeseeable future. It could even be hostile space aliens disguised as humans. If you find that idea laughable, well, it's safe to assume that the Framers would have as well. Which is precisely my point - that it's not wise to take too much stock in the intent of a bunch of people who lived 220+ years ago and counting. They're not the ones who have to live with the consequences of how the Constitution is interpreted. We are.
10.27.2005 6:19pm
Clayton E. Cramer (mail) (www):

As you pointed out previously, it only takes a small number of skilled, determined insurgents to wreak a lot of havoc, and .01% of the U.S. population is still roughly 30,000 people, which as a potential guerilla force is hardly anything to sneeze at.
As I also pointed out, we are not even close to that number.


Anyway, to get back on topic, what I pointed out in my first post is not necessarily a case for gun control. It's more like a commentary on the best-laid plans of mice and Constitution-framers. Whether it actually happens or not, the potential is definitely there for the same Second Amendment provisions for arming a "good" militia against a runaway gov't to also be exploited by an "evil" militia against a legit gov't, and/or against the populace in general. If it's not al Qaeda, it could be someone else in the unforeseeable future. It could even be hostile space aliens disguised as humans. If you find that idea laughable, well, it's safe to assume that the Framers would have as well. Which is precisely my point - that it's not wise to take too much stock in the intent of a bunch of people who lived 220+ years ago and counting. They're not the ones who have to live with the consequences of how the Constitution is interpreted. We are.
Since you have already agreed that we shouldn't let antiquated notions (like the Bill of Rights) get in the way of the government, you aren't going to be upset when the government deals with this imminent crisis you mention by:

1. Banning Islamic proselytizing in the prisons (free exercise of religion--just another 220 year old idea).

2. Taxing Muslims at 2.5% of their net value each year--an idea borrowed from traditional Islamic treatment of non-Muslims (no establishment of religion--another 220 year old idea).

3. Issuing general warrants to search suspected terrorist hiding places (that search warrants provision--absolutely out of date in the modern world).

4. Allowing the government to hold suspected terrorists arrested in the U.S. incommunicado--after all, we might get some useful intelligence out of them, and we don't want them communicating that they were arrested to their fellow conspirators, do we? (habeas corpus--so old that it is Latin, not even English).

Hey, you've persuaded me. Scrap the Bill of Rights, and go for a simple majority rule. Or is that not what you had in mind?
10.27.2005 7:37pm
Publicola (mail) (www):
So much ground to cover...

Mr. Cramer - my point was simply that private ownership of vessels of war was acceptable at the time &because of that I don't think that tanks would have been an exception if they were around at the time.

A more pragmatic reason for the limit on army appropriations vs. no limit on navaal appropriations was that operating a ship required more experience. It just made more sense to have folks already trained in the intricacies of naval warfare than to try to catch everyone up to speed on the eve of (or the morning after) a crisis. Similarly if I had my wishes, the modern military would be cut back quite a bit, but certain specialized occupations, such as piloting aircraft or naval vessels of any size or operating other heavy &specialized vehicles &/or weapons would remain full time jobs. For everything else the citizen-soldier could perform adequately. (&I'm just speaking very basically - it'd be a little more complex than "tank drivers full time, infantrymen on an as needed basis")

A Guest,
The problem with training classes is one of deterent. Now if the classes were mandatory at say the 8th grade level I would generally not have a problem with them (well, other than my problems with socialied education &the like). But any system which requires proof of such a class can be severely &quickly abused w/o achieving its desired or stated purpose. The Cali handgun safety certificate is one example. It creates more confusion about gun safety than it should, &it being a condition of buying ahandgun can be off putting. Face it, most folks just don't like tests. Besides, it confers a condition upon what should be a Right &Rights are generally not objects where such conditions should be placed. priviliges yes, but not Rights.

But look at it this way - assume you live on a border town. Further assume that a foreign army has just invaded &the nearest organized military unit is unable to provide assistance. Would you only pass out rifles to folks who had a safety certifiacte? or who passed a background check? Now it'd be preferable if all the folks in your town had adequate training with arms &were of exceptional moral &spiritual character, but with the hordes of Canadians bent on conquest (they have been eyeing Minnesota for some time now &we all know it) approaching rapidly I think you'd do what I'd do - pass the ammo &pray really damned hard.

So I'd submit that no prior restraint based gun control at th efederal or state evel is constitutional. Further i'd submit that its pointless (bad folks usually don't have much trouble doing bad things w/ or w/o arms) but the main objection I have is that it's immoral.

Billb,
What I would say is that any implement capable of providing for or aiding in defense is an Arm as meant by the 2nd amendment. Rifles, swords, machetes, shovels, war hammers, halberds, knives, mallots, etc. as well as any &all acoutrements necessary for their maintenence (sharpening stones, various cleaning &rust prevention products, etc.) &despite its age the bayonet is still a most valuable tool.
10.27.2005 10:35pm
Publicola (mail) (www):
C Stone,
In several thousand years or warfare victory is still determined by two things - population &real estate. Obviously if group A kills all of group B then Group A wins. But more common is real estate possession as a means of determining victory. A modern military has many weapons at its disposal, but none that will replace the infantry. Having troops on the ground means you win. Not having troops on the ground means you've either won by anihilation or you haven't won yet.

In the Warsaw Ghetto in 1943 a small number of Jews held off the Nazi's (mainly locals alied with the Nazi's) for 28 days. That's longer than it took the Nazi's to conquer all of Poland. They were inadequately armed (especially at first) &ill trained. But they made a stand against a very powerful entity. Ultimately they were destroyed but if they had a little more training &supplies they possibly could have held out much longer.

All that's to say that a populace armed only with handguns &rifles &shotguns could provide enough deterence to preclude victory, especially against their own government. It'd just be harder. Grenade launchers &tanks are very nice to have on your side, but give me ten rednecks with Garands &access to a hardware store &I can counter any platoon sized force you throw my way. Not saying that only rifles &pistols are ideal, but in a pinch that cn be all that is needed. Still, it's better to have things you don't need rather than the other way around.

Justin,
See above. A guerilla action is enough to counter a force ten times larger than your own. Even with simple firearms it can &has been done.

As for it being "preposterous" that we would need to do so - you're playing the odds. In the next year you'd win. In the next five years you're chances go down. By 30 years ahead you simply do not know. Quite a few tyrannical governments sprung into power in the course of a decade or less.
10.27.2005 10:38pm
Publicola (mail) (www):
DE,
"You are contradicting yourself. If the preamble is 'explanatory', then it can't be true that no 'weight' is 'due' it."

No; you're misreading. What I said was. "...we won't give it weight where none is due..."

Re-read that please. I did not say that it deserves no weigh whatsoever. I said it does not deserve weight where it does not deserve weight.

The point was that giving it proper consideration, &not an iota more, is all that absolutists &many others in the pro-gun camp do.

"...the concept of a militia, by its very nature, involves regulation through a structure of command. (I might also add that in the American constitutional context, it is bound by the rules set by the legislature as well. See Art. I Section 8— Congress has the power to make rules for captures on land and water.)"

I'd disagree. A militia in its most generic sense is simply a body of people taking up arms for the common defense. It does not involve regulation or even a command structure (although both are generally preferable) It involves a commonality of purpose (i.e. to repel the invaders). That Congress cna make rules for capture on land &sea, or that it can call forht the militia to repel invasions is not conclusive proof that congress can pass "reasonable" gun control laws (which I think is your ultimate point?).

"The legislature can tell the militia that it has to disarm in certain areas pursuant to the treaty power, and the militia has to obey."

That would be an interesting legal question - &I do hate those. But it revolves around a more generic question - can a treaty over ride a constitutional provision without going through the amendment process? My money would be on "hell no" but I can see folks on every side getting kinda nervous about the deliberation process.

"All of these things were permissible means of regulating the militia AT THE TIME THE CONSTITUTION WAS ADOPTED. Now, you are still going to tell me that 'well regulated' admits of no gun control?"

Yep. Here's why:

The 2nd amendment's operative clause is directed at the government. It's a prohibition upon government action. The reason for that prohibition on government action is explained in the explanatory (or declaritive) clause. If there's any question as to what congres cannot do you can look at the explanatory clause to see what purpose the operative clause served.

In simpler terms the 2nd prevents congress from disarming the militia bcause militia's are a good thing.

If there's any implication of having the militia be 'well regulated" it would not be through the feds. In other words even if I bought your current definition of "well regulated" then the proper actors for such regulation would be the states. The feds are still prohibited from regulating the militia in any way that would disarm them.

Ya see that was the big fear - the feds rendering the militia useless through inaction. So it was not given to the feds to operate the militia except in times of national distress. Similarly it was expressly prohibited from disarming those that would make up the militia, which would be the individual person.

&just for giggles it's interesting that the 14th amendment (when properly applied) also revents the states from disarming the militia.

But coming back to it, "well regulated" does not mean subject to good rules &edicts. It means properly trained &equipped. That was the use of that phrase at the time of ratification &in that context. Note: phrase. The words together amount to more than the words separately.

As another example I'm sure you've seen a shotgun with two barrels side by side right? Well side by side double barrel rifles used to be very common for certian hunting (predominantly dangerous game in Africa). because the sight lay between each barrel the barrels themselves had to be adjusted so that at a certain distance each barrel would put its projectile in the same place as the sight was indicatiing. So let's say at 50 yards both barrels would put their projectiles at the place you were aiming at. Gunsmiths call that "regulated". It does not mean that laws are applied (well, the laws of physics, but that's not the context they were thinking of..) but rather a common purpose was achieved (i.e. that both barrels agree with the sight at a certain distance).

So if you insist on using the modern definition of "well regulated" I'd have to point out that there are alternative definitions of the word that do apply to arms &thereofre should be considered. &the proces of regulating a double rifle is simply "properly training [its barrels on the target] &equipping it [with a sight].


Now here's where I part ways with Mr. Cramer - I cna agree that in certain very limited &narrow circumstances it owuld be useful to a state or society to limit or otherwise restrict a Right. However I do not see that a judge or justice appealing to "common sense" is enough to over ride the text of the constitution. If the result of the reading of the text is undesirable then there is a mechanism in place to change that text. So unless it is specified within the constitution (such as the unreasonable searches language of the 4th) then there should not be exceptions. Arguing that there are exceptions to the 1rst so therefore there must be exceptions to the 2nd is not that different from arguing that since your ex-g/f stole your favorite CD case then you're fine in stealing one from your current g/f whom you don't really care for anyway.

I can see a very small amount of room to manuvuer in definign what constitutes a Right. We can probably agre that being sued for slander does not hamper your free speech but some tend to forget that most of the much lauded exceptions to the absolute Right theory are dished out as punishment after an act has been committed that did or potentially could have caused harm. I'll generally concede that laws prohibiting the careless or negligent discharge of a firearm (such as in the midle of down town) are okay (as long as they are in fact reasonable &don't otherwise chill the Right to Arms). But the argument is not about whether laws punishing someone for improper or immoral use of a weapon is constitutionl, but if laws based upon prior restraint are.

Citing exceptions to the first amendment's protections is simply not applicable to the vast majority of discussions about the 2nd. There are two different premises for the law concenrign each. One seeks to punish those who commit an act &thereby discourage others from committing that act which can likely cause imminent harm. The other seeks merely to restrict people from having the potential to commit acts that could be right or wrong in execution.

So that's why I think you're wrong that the 2nd is not absolute. That's also why I disagree with judges &lawyers who try to justify infringment of the 2nd by pointing out to restrictions on actions similar to those protected byt he 1rst. If we define a Right as the ability or potential to accomplish something necessary &proper for an individual that does not unjustifiably interfere with another person's Rights then I don't see a case that the 2nd amendment is not Absolute, or that prior restraint based laws could ever be a legitimate exception to said Right.
10.27.2005 10:56pm
A Guest Who Enjoys This Site:
Publicola: If you go back and read closely, I think you would find that we agree on the issue of 'deterrence' insofar as it being unacceptable...


If the 'legislative purpose' intended in the drafting of the 2nd Amendment was for "well-regulated" to mean that individuals must have a competence in use and maintenance of the arms they have a right to keep and bear, then hunter safety courses, concealed weapons permit courses, and even the firearms courses that I now understand are required in California for purchase of a handgun are all proper functions of the government. Not in their use as a restriction to ownership, but as originally intended benefits of ownership; benefits to both the individual and society. While one might argue, ad nauseum, over a 'chicken or the egg' scenario, there is NO constitutional prohibition against requiring that individual owners have a basic competence in use and maintenance. That does not mean an arbitrary standard or unrealistic expertise. It means a BASIC competence; which is consistent with many of the hunter safety/conceal weapons courses now out there. Further, a failure to demonstrate that basic competence does not preclude ownership, it actually confers a responsibility to strive for competence; responsibility of the individual to make the effort and responsibility of the government to provide or, at least, not prohibit the individual from making that effort.


In short, the issue is that a requirement of competence in use and maintenance is NOT supposed to be a 'deterrent' or a 'restriction.' The 'chicken or the egg' issue is the one you broach: Gun-control advocates have argued that the egg (courses) must come first, whereas gun owners argue that the chicken comes first (ownership of the firearm). The problem with the position taken by gun-control advocates is simply, "How does one establish a competence in the use and maintanence of a particular firearm if they do not own one to practice with and the government (or gun-control proponents) is/are unwilling to furnish one?"

By making them a requirement of, or restriction on, purchase, the courses, as they currently exist, are theoretical constructs with limited or no practical benefits. However, courses established AFTER the purchase/ownership of the firearm do have the practical application of allowing for firearms 'training' on the basis of BYOG - "Bring Your Own Gun." This is what various gun clubs, the NRA, et al. actually encourage; supervised training, from experienced instructors, under controlled circumstances. By viewing this as a beneficial, 'legislative purpose' of the phrase "well-regulated," the 2nd Amendment restricts government's ability to close shooting ranges and actually places an onus on government to make such 'training facilities' possible. Therefore, such a reading would help stem the tide of range closures and restrictions on shooting on Federal lands (see particularly BLM's current policies).


Inactivist: Your discussion regarding the BoR Preamble is reasonable and sound. However, discussions of the wording of any of the particular amendments are essential to understanding what is being declared as a right and what the restrictions are on government in breaching, prohibiting, or infringing on those rights. This is why I point out above that, particularly given the nonsensical approach taken in recent years of trying to apply today's 'understanding' of what constitutes a 'militia' and an agenda-ridden 'spin' on the phrase 'well-regulated,' an awareness as to the original intent and meaning is essential to understanding the declared purposes and the restrictions on government.
10.28.2005 12:11am
juris imprudent (mail):
Dilan,

Just as the courts can recognize categories of speech that are unprotected and categories of regulations that are outside the scope of the First Amendment's restrictions, they can do the same with gun control laws. Why am I wrong?

You aren't wrong. What you suggest is the proper respect for a right that is broadly held with restrictions very narrowly drawn. That is NOT what most proponents of gun control are willing to concede.

I for one will be thrilled the day the 2nd Amdt is accorded the same respect/treatment as the 1st.
10.28.2005 1:08am
corngrower:
All this navel staring and just a precious few get it. Led by Clayton. Any consideration before a court to restrict any of the actions of citizens rights enumerated by the BoR should most likely should be overturned by ahigher courts and ultamitly SCOTUS.

2cnd Ammendment. Stop parsing it. It says I need a gun to protect me from the govt. thats it. Its simple. There is no other reason for the ammendment to exist, but to protect myself from the govt.

And for whoever does not want to use the entire BoR uncluding preamble to disect a single amendment does not have any concept of context. Take it as a whole to understand any part of it
10.28.2005 11:25am
Clayton E. Cramer (mail) (www):

So that's why I think you're wrong that the 2nd is not absolute. That's also why I disagree with judges &lawyers who try to justify infringment of the 2nd by pointing out to restrictions on actions similar to those protected byt he 1rst. If we define a Right as the ability or potential to accomplish something necessary &proper for an individual that does not unjustifiably interfere with another person's Rights then I don't see a case that the 2nd amendment is not Absolute, or that prior restraint based laws could ever be a legitimate exception to said Right.
It is important to understand that a lot of the Bill of Rights is "shorthand." Focusing just on the text without understanding what the Framers meant by those words causes some rather bizarre results. The ACLU's misreading of the First Amendment is one example. The First Amendment says that "Congress shall make no law... abridging the freedom of speech, or of the press". If you read it in a modern context, that seems to be a complete ban on any law that interferes with saying or publishing anything that you wish.

Yet within a few years, with many of the same members present, Congress had no problem passing the Sedition Act, and laws prohibiting libel, slander, and obscenity continued to be enforced (and some states even have criminal libel statutes--for which you can be sent to jail). By "abridging" the Framers seem to have meant that prior restraint was not allowed; you could publish or say what you wanted, but you could also be held responsible for it, after the fact.

There are similar difficulties when people misread the Eighth Amendment's ban on "cruel or unusual punishment" without understanding the Bloody Assizes of 1685. A great many participants in an attempt to overthrow James II made a plea-bargain in which they pled guilty to treason, in exchange for not being executed (which would have been by drawing and quartering). The Crown didn't keep its end of the bargain. The cruelty of drawing and quartering, and the way in which such a torturous punishment was used as an unfair bargaining chip, played a major role in adoption of this measure.
10.28.2005 12:56pm