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"Necessary to the Security of a Free State":

Apropos today's Supreme Court decision to hear the D.C. Second Amendment case, I thought I'd post the final version of my "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1 (2007), which is forthcoming in a week or two. Here's the Introduction (materially changed from the earlier version I posted some months ago):

"A well regulated Militia, being necessary to the security of a free State," the Second Amendment says, "the right of the people to keep and bear Arms, shall not be infringed." But what did the Framing generation understand "free State" to mean?

Some say it meant a "state of the union, free from federal oppression." As one D.C. Circuit judge put it [dissenting in the case that the Court has just agreed to hear -EV], "The Amendment was drafted in response to the perceived threat to the 'free[dom]' of the 'State[s]' posed by a national standing army controlled by the federal government." Or as a lawyer for one leading pro-gun-control group wrote, "Presumably, the term 'free State' is a reference to the states as entities of governmental authority. Moreover, the reference to the 'security' of a free State must have something to do with the need to defend the state as an entity of government."

This reading would tend to support the states' rights view, and is probably among the strongest intuitive foundations for the view—after all, "State" appears right there in the text, seemingly referring to each state's needs and interests. The reading would suggest the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment doesn't apply outside states, for instance in the District of Columbia: "'the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment's reach does not extend to it'" [citing the D.C. Circuit dissent].

But if "free State" was understood to mean "free country, free of despotism," that would tend to support the individual rights view of the Amendment. "[T]he right of the people" would then more easily be read as referring to a right of the people as free individuals, even if a right justified partly by public interests, much as "the right of the people" is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were selected for a state-chosen defensive force, since the right would not be focused on preserving the states' independence. And it would apply to all Americans, in states or in D.C. [citing the D.C. Circuit majority].

We see a similar controversy about the change from James Madison's original proposal, which spoke of "security of a free country," to the final "security of a free State." Some assume the change was a deliberate substantive shift towards a states' rights provision, and point in support to the Constitution's general use of "state" to mean state of the union (except where "foreign State" is used to mean "foreign country"). Others assume the change was purely stylistic, and thus did not reflect a shift to a states' rights view; they sometimes point for evidence to the absence of recorded controversy about the change.

This Article makes a simple claim: there's no need to assume. There is ample evidence about the original meaning of the term "free state." "Free state" was used often in Framing-era and pre-Framing writings, especially those writings that are known to have influenced the Framers: Blackstone's Commentaries, Montesquieu's Spirit of Laws, Hume's essays, Trenchard and Gordon's Cato's Letters, and works by over half the authors on Donald Lutz's list of thirty-six authors most cited by American political writers from 1760 to 1805. It was also used by many leading American writers, including John Adams in 1787, James Madison in 1785 and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase "free state" meant at the time. In eighteenth-century political discourse, "free state" was a commonly used political term of art, meaning "free country," which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.

"State" simply meant country; and "free" almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.

Even given this finding, of course, many important arguments about the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase "a free State" was not understood as having to do with states' rights as such. Rather, it referred to preserving the liberty of the new country that the Constitution was establishing.

FantasiaWHT:
Wasn't there a link to a site that would predict Kennedy's vote on any issue by inputting a large number of variables? Was that on this site? Did anybody try it with this case?
11.20.2007 3:01pm
demosthenes.or.locke (mail):
Just go to your local walmart and buy a magic 8ball.
11.20.2007 3:17pm
TyrantLimaBean:
Nice Ender's Game reference D or L.
11.20.2007 3:20pm
33yearprof:
Much of the English philosophical literature that influenced the Framer's Whig thinking seems be consistent with "state of freedom" similar to a religious person's "state of grace." That too is consistent with Eugene's thesis.
11.20.2007 3:50pm
Convention-al Findings:
What strikes me about the language of the 2nd Amendment is that it incorporates as an introduction to the Amendment the findings upon which the crux of the amendment is based. It could have just said "the right of the people to keep and bear Arms, shall not be infringed." Are there other rights or limits in the Constitution that are similarly structured?

Regardless, isn't there a strong argument that the Court cannot ignore the first part of the Amendment to reach a holding that renders it superfluous? If so, there has to be more to the rule than just "individuals have the rights to own guns."
11.20.2007 3:52pm
non-native speaker:
On page 10 of the pdf file, is an "s" missing in the sentence: «the phrase “état libre” or “états libres” appears in the original.»?
11.20.2007 3:55pm
Constitutional Crisis (mail):
Is there any distinction between "free State" and "free state"?
11.20.2007 3:57pm
Oren:
CaF, the effect of the first clause on the meaning of the amendment has been argued to death. The Court's usual rules of construction generally disallow ignoring any part of the text (on the dubious theory that legislators do not add or remove words superfluously) but given the absolutely horrendous grammatical construction of the 2A it's hard to imagine a sensible interpretation at all.
11.20.2007 3:58pm
theobromophile (www):

Are there other rights or limits in the Constitution that are similarly structured?

Art. I, Sec. 8, cl. 8 (the copyright and patent clause) likewise reads, "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

As far as I know, the Court has never held that Congress lacks the authority to grant copyright protection to something which does not promote the progress of Science, or to prohibit the grant of patents to frivolous inventions which are not part of the useful Arts.

One could argue that the purpose clause serves as an underscore to the Second Amendment: this is so fundamental to our freedom that it cannot be ignored.

Regardless, the Second Amendment (as were the first 8 Amendments) is meant to apply only against the federal government. It would be strange, indeed, to allow Congress such an exception to an otherwise blanket prohibition. Would the Founders really have intended that States, in fighting the tyranny of a federal government, not be allowed to set foot in Washington, D.C., with their guns? that the fight would have to end at the Potomac, lest the militia-men be in violation of federal law?

...although, as EV points out, it is all really a moot point, given the meaning of "free State."
11.20.2007 4:09pm
Tim Dowling (mail):
Can an argument be made that even if EV is correct about the drafters original understanding (and I have no reason to doubt this), the ratifiers and the educated members of the founding generation generally might well have had a different understanding, premised on the reasonable belief that the 2d Amendment uses “State” in the same manner as the document being amended? In other words, for EV’s argument to be dispositive, don’t we need to showing further infiltration of a common understanding of “free State” into the ratification debates and the founding generation as a whole?
11.20.2007 4:20pm
GoGo:
"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.”

What if we read the second part "the right of the people to keep and bear Arms, shall not be infringed" in the context of "Well regulated" as in the need for a regulated militia but there will be no infringement on personal rights. The framers are then pointing out the need for controls but clearly defining the individual rights.
11.20.2007 4:27pm
SIG357:
The anti-individual right reading has always struck me as nonsensical. It requires us to belive that, among a list of amendments to secure individual liberties, the writers of the Constitution included a provision which says in essence - "The military has the right to carry guns."
11.20.2007 4:33pm
Jim Rhoads (mail):
Sound like some interesting work for the amici in the upcoming SCOTUS briefings, Tim.
11.20.2007 4:34pm
George Weiss (mail):
can we talk about the fact that whether or not the right exists under the 2nd amendment..it may still be ok for states to prohibit gun ownership.since in order to be a right that immunizes you from prosecution under STATE law..the right msut also be "fundamental" as close as this case is...even if there is a right its possible that its 'fundamental" and does not extend to the states.

other examples:
bill of rights has a right to indictment..but it isn't fundamental so it doesn't apply to states (only feds)
bill of rights has a right of freedom from excessive bail..but it isn't fundamental so it doesn't apply to states (only feds)

so i think its a little early so say this is bigger than roe vs wade as some commentators are here.

EV pointed this out way back when they filed for cert..but it keeps getting lost in the shuffle.
11.20.2007 4:38pm
John (mail):
Does anyone know what "regulated" meant in the 18th century?
11.20.2007 4:40pm
byomtov (mail):
In eighteenth-century political discourse, “free state” was a commonly used political term of art, meaning “free country,” which is to say the opposite of a despotism.

But was this discourse conducted in the context of the principles governing a federal republic? In the context the framers were operating in, the word "state" has two possible meanings. That was not so in the writings you are talking about.
11.20.2007 4:45pm
Allen Asch (mail) (www):
I read Prof. Volokh's interesting article pretty quickly (I plan to go back and read it more thoroughly), but I think the article creates too much of a false dichotomy between “a nondespotically governed country” and the former colonies joining together in the US Constitution. Didn't the framers of the US Constitution believe that each of the former colonies was in fact a free, independent republic that was only delegating limited powers to the new federal government?

I notice Prof. Volokh somewhat addressed this issue in footnote 168, writing:

“A free state,” even in the sense of “a free country,” could still theoretically refer to a state as well as to the United States, since the Framers might have seen both as countries. The theory would then be that the Second Amendment was seen as protecting the states as nondespotic (free) states, by making sure that the federal government could not disarm the people and thus could not facilitate the growth of a despotic government within a state. Yet this would be a strange reading: the Bill of Rights was an attempt to prevent federal abuse of power, not to prevent state abuse of power.


But why not read the purpose of the Second Amendment as protecting the states as nondespotic (free) states, by making sure that the federal government could not disarm the people and thus could not facilitate the growth of a despotic FEDERAL government? Isn't that exactly the argument that James Madison made in Federalist 46? ("Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.")
11.20.2007 4:52pm
Goober (mail):
Meh. Angels dancing with pinheads.

Lovely theories aside, the practicalities of this issue seem really, really clear, and equally one-sided. The text of the amendment isn't limited to handguns or othe weapons that NRA members enjoy owning, so if the 2nd Amdt. were really motivated by a concern with keeping the government honest, it's hard to find a constitutional principle that, if adhered to strictly, would simultaneously forbid the government from banning firearms but would permit the prohibition of deadlier weapons. So you're left with two questions: Is the judicial regime going to suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin? And if not, is the judicial regime really going to want to commit to developing doctrine that separates protected arms and those arms that the government may forbid? The answers seem obviously: No, and Maybe at first, but not for long after that.
11.20.2007 4:56pm
SIG357:
If the free state argument is to be taken seriously, doesn't it mean that we need to disband the Federal governments army and institute state controlled militias in its stead? I think the SC will go with an individual right before it accepts that line of reasoning.
11.20.2007 4:57pm
George Weiss (mail):
Goober

if that happens..and the court is forced to allow asault wepons becuase of its decison in this case..

than thre would be a lot of support for constitutional amendment banning assualt rifles woudnt there?
11.20.2007 5:01pm
SIG357:
Is the judicial regime going to suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin? And if not, is the judicial regime really going to want to commit to developing doctrine that separates protected arms and those arms that the government may forbid?



I think a third question might be, are these questions for the courts to decide in a supposedly free republic.

Looking throught the Constitution, I see nothing which grants the Supreme Court the authority to "suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin". Or to not suffer it.

If we are remotely serious about being a republic under "government of the people, by the people, for the people", we need stop allowing the courts to assume powers which are not theirs.
11.20.2007 5:05pm
Bill Woods (mail):
In eighteenth-century political discourse, “free state” was a commonly used political term

In nineteenth-century political discourse, “free state” was a commonly used political term. Maybe the RKBA was enjoyed by citizens of Massachusetts and New York, but not by citizens of "slave states" like Maryland and Virginia, from which D.C. was made? :-)
11.20.2007 5:13pm
gahrie (mail) (www):
If there is a fundamental right to bear arms, that does not mean that the government cannot regulate the ownership of weapons. There is a fundamental right of free speech, but the government may regulate speech.

The important change would be in the level of scrutiny gun regulations would be forced to endure, (they would be subject to strct scruting just as regulation of speech is) and the absolute banning of gun ownership would be unconstitutional.

So you can allow the open carry of handguns, without leaping to nerve gas for everyone.
11.20.2007 5:19pm
AnonLawStudent:
Goober,

The courts certainly haven't had difficulty "developing doctrine that separates protected [expressions] and those [expressions] that the government may forbid." Agree with it or not, time, place, and manner restrictions have a long history.

By way of contrast, do you think the courts would be anxious to develop a doctrine of state preemption of federal gun laws if the 2d Amendment is found to protect a "state" right?
11.20.2007 5:19pm
theobromophile (www):

doesn't it mean that we need to disband the Federal governments army and institute state controlled militias in its stead?

No. "Troops" and "the army" are expressly provided for in Art. I.
11.20.2007 5:51pm
RKV (mail):
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" Article 1 Section 8 US Constitution

Since the missions of the militia are defined, then we ought to be able to define weapons necessary for those missions, as protected by the 2nd Amendment, since the militia is "necessary." Hint: a well regulated militia can't be limited to the posession of single shot .22 rifles since they won't do the job in the case of any of those missions. If you bother to read Miller, this was in fact one of the issues of fact which the Supes directed lower courts to deal with (short barrelled shotgun a militia weapon) when they remanded the case.
11.20.2007 6:07pm
Mark Buehner (mail):

The anti-individual right reading has always struck me as nonsensical. It requires us to belive that, among a list of amendments to secure individual liberties, the writers of the Constitution included a provision which says in essence - "The military has the right to carry guns."


Perfectly put. I'd like to hear someone from the collective rights side argue why the 2nd amendement shoehorned the right of the federal government to arm the national guard into a list of protections from the federal government.

In my opinion the collective rights argument is only self-consistant in a vacuum. In context of the Bill or Rights it makes no sense. If like to hear the rebuttal to that if anyone is game.
11.20.2007 6:18pm
Andy Freeman (mail):
> Regardless, isn't there a strong argument that the Court cannot ignore the first part of the Amendment to reach a holding that renders it superfluous? If so, there has to be more to the rule than just "individuals have the rights to own guns."

For the sake of argument, let's stipulate all of the pro-control arguments about the preamble and rewrite the 2nd amendment accordingly, with one change, namely, we'll take guns out of it.

"Well educated civil servants being necessary to the functioning of good govt, the right of the people to keep and read books shall not be infringed."

Would anyone seriously argue that such an amendment allows "book control", that it doesn't protect an individual right?

The preamble can have meaning without placing restrictions on an individual right. One of the accompanying paper's to Levinson's "The Embarrassing 2nd Amendment" argued that the 2nd's preamble requires some limits on federal military structure and power. (I forget the title and author's name.) If you buy Volokh's argument about "free state", the same argument also limits state forces.
11.20.2007 6:20pm
Cornellian (mail):
If they had intended a state's rights approach, wouldn't they have said something like "necessary to the security of the several states" instead of "a free state?"
11.20.2007 6:22pm
JOe:
The phrase “A well regulated militia, being necessary for the security of a free state,” creates the confusion as to whether there is a collective right or an individual right to keep and bear arms. The operative clause “the right of the people to keep and bear arms,” should provide clarity with the only potentially confusing term being “people”. Since the term people as used in the 4th amendment is clearly an individual right - a ruling that the term “people” has a different meaning in the 2nd amendment seems implausible.

EV made reference in his article that “A well regulated militia.. “ was a purpose clause while the “right to keep and bear arms is the operative clause – However is there a logical basis to argue that the second amendment really creates two rights 1) the individual right to keep and bear arms and 2) the right of a free state or free society to maintain a well regulated militia which is separate and apart from the army or navy as provided in Article 1 section 8?
11.20.2007 6:31pm
Ian Argent (mail) (www):
"Well-regulated", in the parlance of the time, was analogous to "accurate" or "reliable". A "well-regulated" clock would keep correct time; a "well-regulated" stagecoach line would keep to a set schedule or times and prices, etc. "regulated" as the verb from "regular", not the verb from "regulation".
11.20.2007 6:38pm
DonP (mail):
"Goober

if that happens..and the court is forced to allow asault wepons becuase of its decison in this case..

than thre would be a lot of support for constitutional amendment banning assualt rifles woudnt there?"


Ummmm,

Do you mean true assault rifles, with select (machine gun) capabilities that have been tightly regulated since 1934?

Since the import ban of 1986 the price on any true select-fire assault rifle has gone through the roof, a registered "real" M-16, AK-47 or AK-74 complete rifle, or the registered receiver alone, sells today North of $18,000, not counting the $200 tax stamp. Even a crappy MAC-9 "jam-o-matic" now sells for over $5,000 and it's just about $30 worth of stamped sheet metal.

Or do you mean the phony term "Assault weapon" used to describe modern looking semi-automatic rifles that resemble military weapons like the AR-15, the most popular target rifle inthe shooting sports?

The 1994 "Assault Weapons" ban lapsed 3 years ago. In spite of all the dire warnings and rabid editorial rhetoric about the world coming ot an end if it did, the blood isn't running in the streets yet.

But you can always count on 'em. The Brady Group had a fund raising appeal out to their mailing list in less than 15 minutes after the news, asking for an "emergency $50,000 in funding to support the development of the Amicus Brief for the most important case in history".

I wonder if it will still be the "most important case" if they lose the collective argument, which, to an outsider, it looks pretty grim for the collectivists so far?

I hope Mayors Daley and Bloomberg have a terrible night's sleep from now till the hearings and keep getting up and disturbing their armed security details to get them a glass of warm milk.
11.20.2007 6:57pm
DonP (mail):
Oh, and the generally accepted usage of the term "Well Regulated" seems to be "Well Trained", Well Practised" or "Well Prepared".
11.20.2007 6:59pm
Milhouse (www):
DonP:
Do you mean true assault rifles, with select (machine gun) capabilities that have been tightly regulated since 1934?
I'm not Goober, but I assume that's exactly what he meant, since the weapons banned in 1994 are already legal again, and wouldn't be affected by the current case. If the Court recognises the 2nd Amendment's plain meaning, then the 1934 restrictions and the 1986 import ban will almost certainly be unconstitutional, just as would be an import ban on printing presses, or regulations that made it unduly difficult to get a license to own one. Goober seems to me to be saying that if the public doesn't like that result, it's free to demand a new amendment that would ban assault rifles outright. For that matter, if the public doesn't like the 2nd amendment as we hope it will be interpreted in this case, it's free to get the amendment repealed altogether.
11.20.2007 7:39pm
Curt Wilson:
theobromophile:

You bring up the similar syntactic construction of the copyright clause. A few years back, Larry Lessig of Stanford argued to the Supreme Court that after-the-fact copyright extensions did nothing "to promote the Progress of Science and the useful Arts" and so were unconstitutional. He lost pretty badly.

I never would have thought that this had any bearing on 2nd Amendment cases, but who knows?
11.20.2007 8:24pm
Brian K (mail):
In spite of all the dire warnings and rabid editorial rhetoric about the world coming ot an end if it did, the blood isn't running in the streets yet.

crime didn't come to an end either.
11.20.2007 8:25pm
Mike S:
Who cares about the definition of the word "state"? What part of the phrase "the right of the people to keep and bear Arms, shall not be infringed" is unclear?
11.20.2007 8:47pm
snelson (mail):
I note that no one wants to debate the definition our Founders had for the militia: all citizens in good standing between certain ages. I'm a member of the unorganized militia as defined by the Founders and US Code; of course, so is Sarah Brady.
11.20.2007 10:36pm
AK (mail):
Is the judicial regime going to suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin?

I'm no 2nd Amendment expert, but I do have plenty of experience watching the Court and observing its skill at splitting the difference, even when such Solomonic baby-splitting cannot possibly be sustained by the Constitution.

The Court could adopt an individual rights view that accepted that the purpose was to provide security against crime, invasion, and oppressive government, while still allowing for limitations on the types of weapons allowed. Insurrections from the Warsaw Ghetto Uprising to the insurgency in Iraq show that tiny numbers of motivated resistance fighters with small arms can cause great difficulty for highly skilled armies. The Court could say that small arms would be sufficient to form a "well-regulated militia" that would preserve the "security of a free state," and that the states could regulate any weapons that exceeded that amount.

Again, I'm not an expert on the amendment. To me the most logical reading reveals that there's a right to a Ohio-class nuclear submarine if you have enough money for it. But the Supreme Court is never, ever going to announce that right.
11.20.2007 11:04pm
AK (mail):
The copyright clause is a bit of a trap. I don't know if it makes a very helpful example.

The Court would surely uphold the power of Congress to grant copyrights and patents even without the strict grant of that power in Article I. Why? Because there's no doubt that patents and copyrights involve or have a substantial effect on interstate commerce, at least as much as growing wheat on your farm for private consumption does.
11.20.2007 11:09pm
Adam Sullivan:
Has it ever been argued that, even if the National Guard of a given state represented a Militia, that the institution has essentially been federalized, as demonstrated in how weapons are procured, units are assigned/distributed (e.g. infantry vs armor vs support) and how they are employed? Governors will make "state use" of them for disaster recovery and civil order, but they do so rarely and still have to coordinate with the Department of Defense if anything is to happen logistically.

Seems to me that the National Guard as Militia argument is therefore moot, since no state's National Guard could operate independently of the federal government. Where, then, is the Militia for the free State?
11.20.2007 11:10pm
theobromophile (www):

A few years back, Larry Lessig of Stanford argued to the Supreme Court that after-the-fact copyright extensions did nothing "to promote the Progress of Science and the useful Arts" and so were unconstitutional. He lost pretty badly.

I never would have thought that this had any bearing on 2nd Amendment cases, but who knows?

Curt -

Thank you for reminding me. I recall (vaguely) that the copyright extension caused some sort of fiasco w/r/t the intro to Art. I, Sec. 8, cl. 8, but that no one bought the argument.


I note that no one wants to debate the definition our Founders had for the militia: all citizens in good standing between certain ages. I'm a member of the unorganized militia as defined by the Founders and US Code; of course, so is Sarah Brady.

Generally, all free, able-bodied men between certain ages; that excludes Miss Brady, although there may be an Equal Protection issue there. ;)

I'm not sure which side you want debated with that, but I think it underscores the idea of the Second Amendment protecting an individual right. Otherwise, the right would be limited to those in the militia (which is not a substantial limitation, given the broad construction); however, such a limitation is one easily overridden by the States, at their own will. That would create a situation in which a state could substantially gut a federal regulation (i.e. a prohibition against non-militiamen owning or carrying guns) through its own legislation (i.e. expanding the definition of "militia" to include everyone within its borders). That would also create the situation in which the federal regulation in question would apply differently to identical persons, merely by their presence in certain states.
11.20.2007 11:11pm
Leif (mail):
"Does anyone know what "regulated" meant in the 18th century?"

In 18th-century America, a well regulated militia was ordinarily one that was well regulated by law.

Every few years, Pennsylvania enacted legislation similar to one in 1777 which was titled,"An Act to Regulate the Militia of the Commonwealth of Pennsylvania." The act was chuck full of rules and regulations.
11.21.2007 12:01am
Riley Still (mail):
I haven’t noticed comments on an explicit alternative meaning of the term “state.”

Is it possible that the Framers were not referring to any entity but instead were referring to a condition in life, a state of being, to wit freedom?

Reading thusly, “A well regulated Militia, being necessary to the security of a free state of being, …”

If mine is an alternative phrasing the Framers could have used to arrive at the meaning they intended, then the notion that the Framers intended possession of arms to be guaranteed only subject to permission of a (governmental) state, or in the service of a "state" would be hard to defend.

I believe this interpretation is a cousin to EV’s notion … “But if ‘free State’ was understood to mean ‘free country, free of despotism,’ …
11.21.2007 12:56am
Mark Buehner (mail):

To me the most logical reading reveals that there's a right to a Ohio-class nuclear submarine if you have enough money for it.


I dont know about that- no liberty is without limit. Consider the fire in the crowded theater chestnut. I think a fair reading is that the weapons a foot soldier might be expected to carry are protected- this was the line Miller tried to walk. The only problem with Miller in my mind is their lack of sophistication- a sawed off shotgun is most definately a reasonable weapon for a grunt to tote (demonstrably, over the year). This might preclude squad type weapons such as mortars and heavy machine guns, but certainly not 'assault rifles' however you define the term. Anything requiring a military infastructure would be right out, and hence most of your big ticket mass killing systems. Aside from being a very reasonable line, this is pragmatic in the sense that it requires a great many people to build, field, maintain, and deploy something like a tank, submarine, or WMDs. Hence there is a societal involvment inherint in the process- no one person should necessarilly be entitled to its use. A rifle, even a machined semi-automatic rifle, can be argued to be something an individual could at least maintain and use. There is a division of responsibility meme somewhere in that.
11.21.2007 1:03am
AK (mail):
This might preclude squad type weapons such as mortars and heavy machine guns, but certainly not 'assault rifles' however you define the term. Anything requiring a military infastructure would be right out, and hence most of your big ticket mass killing systems. Aside from being a very reasonable line, this is pragmatic in the sense that it requires a great many people to build, field, maintain, and deploy something like a tank, submarine, or WMDs.


If the purpose of the militia mentioned in 2nd Amendment is to guard against a tyrannical government, the militia must have sufficient firepower to do so. Were private citizens forbidden from owning mortars, field artillery, or siege cannon in the 1790s? If they were, then I'd concede your point. If not, then I have to conclude that the militia has the right to match the oppressive government's Apache helicopters.

I don't like this result very much, either. Certainly I think that private citizens armed with small arms are enough to provide for the security of the state. But I don't think that the Amendment requires that the militia only be armed to bare minimum necessary. To conclude that it does requires non-textual baby-splitting because we like the result.
11.21.2007 1:33am
theobromophile (www):

If the purpose of the militia mentioned in 2nd Amendment is to guard against a tyrannical government, the militia must have sufficient firepower to do so.

Art. I, Sec. 10, cl. 3 prohibits states from keeping troops without the consent of Congress, which implies some distinction between the constitutionally-protected right to a "militia" and the prohibition on "troops." The latter are presumed to undergo regular training, be divided into regiments, and have enlistment guidelines. Pressner v. Illinois (1885) addressed this, in part. It would be difficult to use an Apache helicopter as part of a "militia" that does not undergo regular training and is not divided into regiments.

...well, that and you can't bear a helicopter, cannon, or tank. ;) (Hat tip: Justice Scalia.)
11.21.2007 10:15am
PubliusFL:

The latter are presumed to undergo regular training, be divided into regiments, and have enlistment guidelines


Wait - you think the militia did not undergo regular training, were not divided into regiments, and did not have enlistment guidelines? The last were pretty weak (little more than age requirements), but the late 18th-century militia drilled regularly and was organized into regiments.
11.21.2007 11:21am
Mark Buehner (mail):

If the purpose of the militia mentioned in 2nd Amendment is to guard against a tyrannical government, the militia must have sufficient firepower to do so. Were private citizens forbidden from owning mortars, field artillery, or siege cannon in the 1790s?


I suspect it differed by state, but i am no expert. Regardless, if the 20th century (and the current century) has taught us anything its that a popular resistance armed with AK-47s and grenades can be more than a match for a professional army. Whats the real utility of a citizen having a tank? The occupying military would make mincemeat of it as soon as the baloon went up. On the other hand a bunch of guys with rifles blending into the population is a tried and true resistance method.
11.21.2007 11:24am
DonP (mail):
"In spite of all the dire warnings and rabid editorial rhetoric about the world coming ot an end if it did, the blood isn't running in the streets yet.

crime didn't come to an end either."

Nope, but with rifles of any kind accounting for under 3% of crimes involving guns, I don't know that anyone really thought it would come ot an end anyway.

No one that was against the "Assault Weapons Ban" thought it would have any impact on crime, one way or another.

It was the fine folks on the other side, Brady, major metro newspapers, WP, Chicago Tribune and the always reliable NYT et. al. claiming that once the ban lapsed that police will be at risk, criminals will start an arms race with police and murders with these "fast shooting, high powered, repeating weapons will skyrocket". I guess their editoiral boards are still waiting for the crime reports to come in.

Do you really expect gun legislation to have any impact on crime on a macro basis? The 48 states that allow concealed carry have noted a small reduction inc rime but nothing that can statistically be linked to CCW legislation. OTOH, the criminal records of CCW holders have proven that the folks that go through the hoops to get a license are much more law abiding than their counterparts in the general population.

The right to have or carry a personal defense weapon will have an impact on a very small percentage of the population and it will be on a very personal basis. Defensive gun uses, ranging from just displaying to actual use of a firearm, range from estimates of 1.5 million on the low end to as high as 3 million every year.

Outside of military service I've had two occasions to display a weapon and was glad I had it at the time and even happier that i did not have ot use it.
11.21.2007 12:06pm
Mark Buehner (mail):
There's a serious (if not fatal) problem with the National Guard states rights interpretation of the 2nd. Its in direct tension with Article I, section 10.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Surely it wasnt intended that the states had the right to form and arm a national guard to deter the federal government, but only with the consent of Congress?

Either that reading is faulty or the 2nd was intended to amend Article I, in which case there would have to be some scholarship indicating that was the intent.
11.21.2007 12:51pm
Leif (mail):
I think that founder-era Americans considered each of the former colonies to be a "free state," along with later additions of states. John Adams, in a letter to Cotton Tufts in 1776, said this:

“[A]t last a Committee is appointed to prepare a Draught of Confederation, and a Declaration that these Colonies are free States, independent of all Kings, Kingdoms, Nations, People, or States in the World…”

Each free state needed its own well regulated militia. Its security depended upon it.
11.21.2007 1:55pm
Vinnie (mail):
"To me the most logical reading reveals that there's a right to a Ohio-class nuclear submarine if you have enough money for it. "

It would be useful if I was seeking a letter of marque or reprisal.
11.21.2007 5:28pm
Ian Argent (www):
It's not the ohio-class submarine of which ownership is in question. It's the Trident missiles in the tubes.

I could make the argument that since submarines are the primary tools of power projection today (as wooden-hulled vessels were in the Founding Fathers' period) and that the trident missiles are the primary armament of those submarines (as cannons were then, and cannons were provably privately owned and operated on privately owned and operated vessels) that the FF would be in favor of private ownership of Tridents...

Is it a valid argument? I have no idea; but it is a valid argument for private ownership of weaponry up to at least crew-served artillery pieces; as up until very recently, historically speaking, that was legal (technically, still is federally-speaking - Civil War re-enactors own and operate a fair number).
11.21.2007 9:18pm
zach gennaro (mail):
Perhaps this is addressed somewhere, but I did not see it. The 2nd means that Congress cannot make gun control laws for the states. But D.C. is not a state, and has no state militia. So, although the 2nd is an individual right (that is obviuos), couldn't it be interpreted that DC can keep its ban because they have no need for a militia? I would say no, because trained men who are competent with weapons may have other uses other than fighting a despotic central government. What is the purpose of armed state militias?: The security of a free state. Security in life, liberty, and property; three things no one would say DC residents aren't guaranteed by natural law. Therefore, bans of any type of firearm are verboten.
11.21.2007 9:50pm
Vinnie (mail):
If DC is immune from having a militia why were DC residents drafted?
11.21.2007 11:33pm
Squid (mail):
FREEDOM is often lost in this debate, which is a shame. I don't own guns, but I treasure my right to do so.

FREEDOM. When it comes to privacy and search &seizure issues, people seem to understand that constitutional law isn't just a policy debate — in other words, we aren't just looking for the hypothetical "best" outcome — but rather, what it means to be American.

The argument goes like this: if you want to curtail freedoms, you better bring your lunch money to the argument. Speculating about what some preamble means (i.e., "A well regulated militia...") to open the door to an outright ban of guns doesn't qualify in my book.

Guard your freedom.
11.22.2007 11:00am