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D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?

Prof. Nelson Lund, of George Mason, is one of the leading conservative legal scholars writing in support of a meaningful Second Amendment. Unlike, for example, most of the VC writers, Lund's legal philosophy has hardly any libertarian influence. (For example, Lund argues that Pierce v. Society of Sisters was wrongly decided, as are all its progeny, the "substantive due process" cases.) Lund's latest article on the Second Amendment, will appear soon in a symposium issue of George Mason University Civil Rights Law Journal. Here's part of the abstract of the thought-provoking article, which addresses an argument that, as the cert. petitions have already shown, will be a key part of the Fenty administration's attempt to preserve the D.C. handgun ban:

One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?

This superficially plausible defense of the District's statute was not adequately refuted in Judge Silberman's opinion for the D.C. Circuit. This article demonstrates, largely but not exclusively on the basis of a careful linguistic analysis of the Second Amendment, that such a defense of the District's statute is untenable.

stormy (mail):
This argument could certainly be made but handguns are 'ordinary military arms' as described in Miller.
11.23.2007 2:12pm
DiverDan (mail):
I am not terribly persuaded by the arguments based upon a gramatical parsing of the Second Amendment, but I really like the argument that the Second Amendment must protect individual rights, relying upon the historically well recognized right of self-defence. That alone ought to justify striking down any ban on the possession or use of handguns which might be used to protect against home intruders.
11.23.2007 2:45pm
gattsuru (mail) (www):
I think he says that the justices would have to overthrow Miller, since it could be used to make bans on mortars unconstitutional. He goes on to show that such an argument would be iffy.

I do like his recognition the 2nd Amendment doesn't limit itself to only the usage in a well-regulated militia, although I think he takes it a bit too far. I don't like his belief that the Supreme Court should reinterpret the 2nd Amendment to fit today's need to deal with criminal activity -- that sorta stuff would well leave us exactly where we are today. Especially given the 1780s definition of arms, which could either describe all weapons or limit itself to small arms, firearms, knives, and useful items associated with the ownership and care of such, doing so just to prevent constitutional protection of grenades under the 2nd amendment seems like hitting a fly with a nuclear weapon : workable, but nasty to the property values.

It also doesn't deal with the "necessary and proper" and "commerce" clause issues with such bans, as well.
11.23.2007 2:47pm
Duncan Frissell (mail):
So you're saying that Lund actually believes that it's OK to ban all private schools and presumably home schooling? That's quite a stretch since home schooling and private schools were legal everywhere at the time of the Revolution. Irt certainly wouldn't work because they aren't getting my kids. I'll just export them to overseas schools. You lose, Buckwheat.
11.23.2007 2:52pm
PersonFromPorlock:
gattsuru:

It also doesn't deal with the "necessary and proper" and "commerce" clause issues with such bans, as well.

No sweat, 'judicial deference to the legislature' obviates such pettifogging objections.
11.23.2007 3:44pm
Anderson (mail):
That's quite a stretch since home schooling and private schools were legal everywhere at the time of the Revolution.

I don't see how that's an argument, since there's nothing in the bill of rights protecting education.

Of course, I also disagree w/ Prof. Lund and believe that some sort of SDP is inseparable from a limited government.
11.23.2007 4:01pm
Porkchop:

One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?


It seems to me that this argument proves too much. If the goal is to preserve a "stock of weapons" suitable to militia service, then why couldn't the District (and every state) determine the size of the necessary "stock" for its own militia to be zero and ban all weapons as unnecessary?

In addition, I think that the good professor makes unwarranted assumptions concerning the obviousness of the better suitability of rifles and shotguns for militia service over handguns. It's not obvious to me, and I own both rifles and pistols. Each has its appropriate uses.

In addition, if I recall correctly, there are significant restrictions on the use of shotguns in combat. Perhaps someone could correct me if I am wrong, but I think that the restriction prohibits the use of shotguns except for slugs -- which makes them essentially as useful as muskets at any significant distance.
11.23.2007 4:08pm
Fen:
"A well-educated Congress, being necessary to the security of a free state, the right of the people to keep and read books, shall not be infringed"

Nothing in there about public libraries...
11.23.2007 4:32pm
Bob Leibowitz (mail) (www):
Porkchop--

There are no relevant American restrictions on the use of shotguns in warfare, the Marines are particularly skilled in their use. Miller went the way it did because only one side was heard from; the other could have easily made the truthful argument that shotguns are well-suited and often used by our military, and history might have been different.

On sidearms, there are more more handguns in use by our military than at any other time in our history. The Berettas and Colts seem to be on every hip. They are particularly useful in urban environments.

Finally, you observe that given a states' rights decision every state could determine that every state could determine that zero is the best answer and thereby ban guns. I agree that they "could," but they won't.

A more interesting possibility is that a number of states would create and staff true militias, not answerable to the federal government and, in fact, superior in law to the central armed forces. After all, if "shall not be infringed" is construed to apply to the states, we can all look forward to the day Nevada or Arizona recruits folks to help defend their borders. A number of people would volunteer for such with no more compensation than that they be "required by their duties" to carry concealed, whether walking down the streets of Washington, DC or flying the suddenly friendlier skies with United.

The states' rights folks have not figured out and never articulated the consequences of their argument winning. It would be most interesting!
11.23.2007 4:35pm
Glenn Reynolds (mail) (www):
Bob: Don Kates and I explored the ramifications of a "states' rights" interpretation in this article in the William &Mary Law Review a while back.
11.23.2007 4:47pm
RKV (mail):
Machine guns, full auto rifles, shotguns and pistols of several types are in use in the military today. As are knives, batons, grenades, body armor, tear gas, .50 caliber sniper rifles and a variety of other hand held weapons. Lund doesn't know what he's talking about, obviously, or this line of reasoning would be recognized as a dead-end for those who hope to maintain government regulation of civilian arms.
11.23.2007 4:53pm
Bama 1L:
To be sure, some authorities hold that shot must not be used in combat because it causes "superfluous wounds." But the United States has never adopted this position and, indeed, argued the opposite.

Shotguns loaded with buckshot were used by WWI American infantry for trench fighting. (This occasioned a German protest.) Since that time, some specialized issue of shotguns has been made. In most cases, of course, infantry are better off using (assault) rifles: longer range, better precision, greater magazine capacity. But shotguns are particularly useful in security and urban operations and have been used for that purpose pretty regularly. As Bob Leibowitz points out, urban operations are currently a particular preoccupation, and therefore not only sidearms but shotguns are issued at a very high rate compared to the historical average.

So I do not think you would get particularly far in an American courtroom arguing that shotguns are de jure or de facto not military weapons.
11.23.2007 5:19pm
Bob Leibowitz (mail) (www):
Glenn -- Thanks. Good job. I'll reference your article when I write this up, likely over the weekend.

I really do wonder if the states rights folks have thought this through and are ignoring the ramifications, or if they haven't.

Sort of like the Memorex ad, is it real or is it not? -- Bob
11.23.2007 5:29pm
gattsuru (mail) (www):
Porkchop, he argues that such an attack on the DC Circuit's decision would be unlikely to succeed.

Shotguns are not, according to American interpretation, prohibited by international law. Fletchette shells are, but are typically too expensive for their benefit to be used anyway. You do hear some stories about illegal use of them in Vietnam, though.
11.23.2007 5:36pm
gattsuru (mail) (www):
Mr Leibowitz, given some unpublished cases from the 6th Circuit, it seems that they are both aware of the issues and willing to face them...

By redefining the right to whatever they want.
11.23.2007 5:44pm
John Stephens (mail):
I would just like to point out that the militia, at the time the Constitution was written, had a law enforcement as well as a combat role. Does anyone want to argue against the utility of pistols in police work? In fact, that's pretty much what a homeowner defending himself against a burglar or home invader is: "A Militia of One".
11.23.2007 5:44pm
iowan (mail):
Is the assumption then, the 2cnd is is place to stop the federal govt from dissarming a malitia? This seem quite odd to me. Again the only purpose of the 2cnd is to protect the people from the govt. This is the same parsing that has us in trouble with the establishment of relegion in the 1st. It says 'congress shall make no law'. So a manger scene on the court house square is fine as long as congress did not require it by law. And if a school can be defined as 'congress' by doing a morning prayer, than SCOTUS much more resembles 'congress' by forbiding such free expression
11.23.2007 5:44pm
Brett Bellmore:

the other could have easily made the truthful argument that shotguns are well-suited and often used by our military, and history might have been different.


I've occasionally thought about that, and I've concluded that we actually dodged a bullet as a result of Miller's non-representation. At the time Miller was decided, the Supreme court was simply not in the business of enforcing constitutional limits on federal power. That the feds were going to prevail in Miller was a given, Miller's non-representation merely enabled the Court do accomplish that on the narrowest possible grounds.

Had Miller shown up with decent representation, the Court would have rejected in detail all the arguments we must now rely upon in the Heller case, and we would have been well and truly screwed.
11.23.2007 6:12pm
Porkchop:
To be specific, the question in Miller was whether a sawed-off shotgun (i.e. of less than legal length) had potential military application. In the absence of the presentation of any evidence that there was such potential application, the Court accepted the government's position that it did not. I don't think the opinion purported to make a statement about all shotguns.
11.23.2007 6:24pm
Porkchop:

Mr Leibowitz, given some unpublished cases from the 6th Circuit, it seems that they are both aware of the issues and willing to face them...

By redefining the right to whatever they want.



After reading the Hamblen case, I conclude that the defendant was simply a dumbass.

From the opinion:


State Guard policy prohibits members from either keeping State Guard weapons in their possession for possible emergency or other use or carrying their own individual weapons in the course of their duty. If a State Guard member were to carry a personal weapon while serving in his official State Guard capacity he would be subject to a court-martial.


That's really about as thin an argument as I can imagine: "I'm in a militia-type organization that is not supposed to carry personal arms on duty, so I thought I would arm up with 9 (untaxed, unregistered) fully automatic weapons just in case they changed their minds." Related to his duties? Doesn't sound like it to me.
11.23.2007 6:38pm
Crafty Hunter (www):
Speaking of hard questions, I've always wondered about the hypothetical individual right to keep and bear arms for women, men over the age of 45, and disabled adults. Does a strict definition of "militia" as historically understood affect this individual right?

I've just returned and may be babbling, so please feel free to clarify (or expand) the question as necessary. :)
11.23.2007 7:20pm
arbitraryaardvark (mail) (www):
The Hamblen case above is interesting. If the scotus upholds Heller, what are the rules about reconsidering cases like Hamblen? Also, if the feds are putting people like Hamblen in jail for keeping and bearing arms, what does this say about the Bush adminstration's claims that it supports the individual rights position?
11.23.2007 8:05pm
Letalis Maximus, Esq. (mail):
OK.

I'd like my Ma Deuce now, please. You can drop off the 37mm chain gun tomorrow. The Dillon Aero mini-gun can wait until next week.

What a load of bullocks.
11.23.2007 8:05pm
Anonymous Coward #39841:

Speaking of hard questions, I've always wondered about the hypothetical individual right to keep and bear arms for women, men over the age of 45, and disabled adults. Does a strict definition of "militia" as historically understood affect this individual right?

Nope. The right to keep and bear arms belongs to the people, not the militia.
11.23.2007 8:13pm
gattsuru (mail) (www):
I'd expect that various equality laws, the 14th amendment, and the ADA would make any such disarmament unconstitutional or otherwise unlawful without extremely good reason, Hunter.
11.23.2007 8:38pm
Donald (mail):
TITLE 10--ARMED FORCES

Subtitle A--General Military Law

PART I--ORGANIZATION AND GENERAL MILITARY POWERS

CHAPTER 13--THE MILITIA

Sec. 311. Militia: composition and classes

(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.
11.23.2007 8:48pm
orpheus_sail (mail):
Before arguing the 2nd Amendment, why would D.C. or any other governmental agency jail individuals before they've harmed, threatened, or endangered anyone? Do they have insight into the future which I don't?
11.23.2007 8:48pm
Mike M. (mail):
This argument - that the DC law does not adequately violate the Second Amendment - is one I am concerned about. Certainly the Parker/Heller legal team had better be able to demolish it.

However, it is worth considering the following practical facts:
1. At the time of the drafting of the Constutition, pistols were part of the standard equipment of cavalrymen and officers, both in the United States and Europe.
2. During the Civil War, revolvers were a primary arm of cavalry, and a secondary arm of artillerists and officers. Again, this was standard throughout Western services.
3. During the First World War, pistols (both revolvers and self-loading) were commonly issued to cavalry, artillerists, and infantry. General Pershing is known to have had an objective of arming every member of the American Expeditionary Force with a pistol.
4. During the Second World War, pistols were standard issue to non-infantry troops. The genesis of the M1 Carbine was a desire to create an arm specifically for these non-infantry troops that would be more effective than the M1911 pistol. Despite this, most infantrymen would acquire a pistol if they could...usually from the Germans, who had a policy of issuing pistols to all their troops.
5. During the Vietnam War, pistols were widely issued to both infantry and non-infantry personnel.
6. As others have noted, some troops currently operating in Iraq are issued pistols...and like their World War 2 forebears, those troops not issued pistols are scrounging them.

From this, we may reach the following conclusions:
1. Pistols have been and remain useful military arms. This is particularly true for personnel engaged in urban combat, insurgency/counterintersurgency operations (and note that insurgency/counterinsurgency is a particular strength of militia forces), and for logistic support troops.
2. In light of this, any attempt to claim that pistols are not legitimate militia equipment is false.

Mr. Stevens also raises a good point. Posse Comitatus powers enable the government to commandeer support from private citizens, including deputizing them for temporary service to reinforce law enforcement personnel. The potential need for such support in the event of criminal action, domestic disturbance, or natural disaster cannot be denied. The recent unwillingness of modern governments to use this authority may be safely ascribed to issues of liability and bureaucratic inertia/interests.
11.23.2007 8:49pm
Mike M. (mail):
I'll add that if somebod really NEEDS the references, I've got them. Thirty years of studying military history will leave you with a large library.
11.23.2007 8:51pm
Armigerous (mail):
At the time the 2nd Amendment was drafted and included in the Bill of Rights,it was generally understood...a given...that most people would have a musket or rifle or even a brace of pistols at home...and that this common law right which had been a part of English law for hundreds of years would thereby lend itself to utilization to local militias...since nearly every able bodied man between 18 and 55 was expected to make himself available to militia service if called upon to do so....the notion of these arms being stored under lock and key in 'armories' under control of the several states would have struck the founding fathers as ludicrous,as it would have left individuals essentially unarmed during a time when Indian raids were still a very real occurrence in many areas....not to mention the fact that almost ALL of the 10 Amendments clearly dealt with the rights of the INDIVIDUAL and not the several states...much less the 'rights' of the US government....the founding fathers recognized that a well armed citizenry was the best protection people had against a potentially tyrannical government and this was an insurance policy against such a development....these days,the only people who don't want individuals to bear arms as individuals are those who want socialism crammed down our throats and they know that such a thing is impossible until they disarm the citizenry....not for nothing did I pick my nickname
11.23.2007 8:57pm
Don Meaker (mail):
The 'letters of marque and reprisal' clause presupposes private ownership of crew served weapons, which is what an armed ship would be.

The 14th amendment applies federal right protections to protect individuals from state oppression.

Shotguns are the poor man's fully automatic weapon. A 3" magnum with number 1 shot puts 25 each .30 caliber projectiles down range. The amusing thing is in California, 'magazines' are limited to 10 rounds. When the projectiles are bundled into a single round, a permitted double barrel puts out 50 projectiles, nearly simultaneously.

During the Revolution the preferred load was 'buck and ball' which provides one .73 caliber projectile (larger in diameter than the CA banned .50BMG) and 3 each 00 buck, each .36 caliber projectiles. All that went down range rather like a 4 round burst. The only thing that could offend the 'Brady Campaign' bunch more would be if they fired it from the hip to spray their target. Of course since the revolutionary muskets were unrifled, hitting anyone was a matter of 'spray and pray'.
11.23.2007 9:21pm
Bob Leibowitz (mail) (www):
Brett Bellmore --
Had Miller shown up with decent representation, the Court would have rejected in detail all the arguments we must now rely upon in the Heller case, and we would have been well and truly screwed.

That would have been interesting, as Mr. Miller had already passed to his eternal reward at the time.
11.23.2007 9:22pm
Speedwell (mail):
I'm tremendously struck by the atunningly appropriate idea that (if I may paraphrase) the opposite of well-regulated is not insufficiently regulated but improperly regulated. (Compare well-tempered as in Bach's Well-Tempered Clavier, published just a few decades earlier.) To the philosophically-minded Founders, something that was "well" in this sense would be something that neither fell short of nor exceeded the optimum. Still smarting from the whip of oppressive English laws, they would have considered the optimum to be quite minimal, I think.
11.23.2007 10:31pm
Kevin Baker (mail) (www):
If the Supreme Court isn't going to be setting new precedent, aren't they bound by previous decisions?

In Dred Scott, while Chief Justice Taney's decision that blacks couldn't be citizens was odious, his reasoning, given the period, was sound. Blacks couldn't be citizens because citizenship
would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
No matter what, Chief Justice Taney and the rest of the majority understood what the rights of citizens - regardless of membership in a militia - were.

Then, in Cruikshank (very applicable in Heller) the court declared that the Second Amendment secured the right of "bearing arms for a lawful purpose" - again, with no militia limitation. If keeping a functional firearm for self-protection isn't a lawful purpose, what is?

And, if you DO want to continue to argue about militias, in Presser the court declared
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
So here we have three precedents in which an individual right to arms is expressed. In two of them, both predating the third, no militia membership is mentioned, and in the third it is made explicit that everyone is a member of the militia anyway.

Since ordinary handguns are part of the "ordinary military equipment," it seems obvious that a ban on these instruments is in violation of the Second Amendment.

But then "Public use" seemed obvious to me, too.
11.23.2007 10:52pm
Chuck (mail):
No legal expert I, may I pass on a viewpoint learned from school and family on the 2nd Amendment from back when (late 1960s) I took a rifle and a pistol to school for a Junior High show-and-tell project on how things work. (Unloaded, of course, and with full permission of the teacher — stored in padlocked hall locker until class.)

The Civics courses of the day defined the right to keep and bear arms as a personal, individual right ("of the people"), and also an obligation. The old English law of Hue and Cry required and authorized the citizenry to arise when called to deal immediately with some hazard or assault on/in the community. This was an obligation to help protect your neighbors. From those origins, the 2nd Amd reference to "A Militia" is a reference to the people as a whole, standing Army, etc, nonwithstanding. "Well Regulated" was properly functioning/functional — that is competent and ready with their weapons to act. "Keep and Bear Arms" was to use carry at the ready those weapons for instant use, though politely when not dealing with a crisis. Self defense was implicit in this, as you are your own first line of defense.

From there, the Milita was a spontaneous uprising of one or more people in reaction to a crisis. In the presence of a designated official, such as the police, the milita would be better known as a Posse. The 9th Amd was invoked here as a traditional right of the people to join in self-defense, such as forming a firing line to repel rioters, as well as individual defense. (In a perfect 2nd Amd / Hue-and-Cry world, the famous California bank robbery automatic weapons shootout would have ended when local deer hunters started shooting the robbers from 200 yards. As it was, the police had to go beg for adequate weapons from local gun shops.)

And of course, if the government officials are corrupt and oppressive to the people, then the Rule of the Boxes is in effect: Soap, Ballot, Jury, Ammo — in that order.

To me, this makes Miller just plain wrong. If the weapon can be used to defend yourself, it's covered. Army use is irrelevant — The militia (self-defense) use would count.

One old fogey's opinion. Your mileage may vary.
11.23.2007 11:57pm
Kazinski:
After a certain point constitutional analysis of the 2nd amendment is a wasted effort. The arguments for the 2nd, really should be a simple matter of reading the text. If the courts treated the 2nd as they treat the first eight the debate would be stretched by this time to whether or not individuals could possess nuclear weapons, (my view: probably not, but I think Miranda warnings took the 5th amendment too far). But most of the debate on the pro-side is trying to anticipate the absurdest arguments of the anti-side. For instance arguing that the 2nd amendment is out dated because the traditional militia is obsolete, well I never hear an argument that the first amendment is out dated because they no longer use printing presses.
11.24.2007 12:13am
areacode512 (mail):
2nd ammendment says 'infringed', not banned, prohibited, restricted...seems to me singling out handguns vis-a-vis shotguns, rifles constitutes infringement.
11.24.2007 2:01am
Broadsword (mail) (www):
Regarding Speedwell above, I once heard that to the Colonials, "well regulated" meant well trained. If this is so, then understanding the word "regulated" as it's now taken to mean, misses the mark. Can anyone confirm or elaborate on this? Also, (and Heston told the story himself), during the LA riots, as the rioters and looters, shall we say, 'enlarged their territory', Charlton Heston got a phone call from one of his not-a-firearms-loving Hollywood neighbors. "Hi Chuck." "Hello." "Uh, Chuck, you have some guns over there, don't you?" I forget if they asked the loan of one or two. Heh.
11.24.2007 8:24am
iowan (mail):
kazinski has it right. the 2cnd is parsed to death and yet everyone avoids the obvious point of the bill of rights, it prohibits the federal govt from doing specific things. Forbids a state relegion, forbids taking away arms, forbids quartering troops, forbids forcing a defendent to testify at trial, forbids locking people up whithout being charged, forbids the govt from convicting anyone whithout a trail. See? like that.
11.24.2007 8:28am
Clayton E. Cramer (mail) (www):

But most of the debate on the pro-side is trying to anticipate the absurdest arguments of the anti-side.
That's because the absurdest arguments of the anti-side are likely to get at least two or three justices' votes.
11.24.2007 9:29am
Clayton E. Cramer (mail) (www):

1. At the time of the drafting of the Constutition, pistols were part of the standard equipment of cavalrymen and officers, both in the United States and Europe.
More importantly, the Militia Act of 1792 required members of the militia who were calvary to own pistols, and have them at home.
11.24.2007 9:30am
Clayton E. Cramer (mail) (www):

OK.

I'd like my Ma Deuce now, please. You can drop off the 37mm chain gun tomorrow. The Dillon Aero mini-gun can wait until next week.

What a load of bullocks.
Webster's 1828 A Dictionary of the American Language defined arms as that which one could pick up to strike or assault another. This would seem to exclude weapons that you can't pick up and carry--as most of the examples above would be.
11.24.2007 9:32am
RKV (mail):
Clayton,
You know this material better than to interpret arms as strictly limited to "that which one could pick up." You are well aware of the common practice during the early Republic to arm private ships, without permission from governments. Given also that privateer ships were employed up to the size of frigates (e.g. "Caesar" out of Boston, with 26 guns) and that 1700 letters of marque" (a "hunting license, not a permit to own) were issued during the revolution, that arms was interpreted quite broadly. Further note that Congress defined the rules of engagement for privateers and required bonds be posted for conduct during operations. Again, NOT fees/licenses to own or purchase very heavy weapons, even by modern standards.

NPS link re privateers
11.24.2007 10:32am
John Neff (mail):
My favorite commentary on the 2nd amendment is the movie "The Russians are Coming" and my favorite part is when the police chief tells Jonathan Winters to bring his gun. If that was a well regulated militia then God help us.
11.24.2007 11:13am
RKV (mail):
Don't let's confuse films and reality, say shall we? Reality could be like Switzerland or Israel. It ain't there now because many state governments are openly hostile to their citizens who own arms. Those state governments want their employees to have a monopoly on armed force, and the Constitutional rights of citizens be damned. California, Hawaii, New York, Illinois and others come to mind. Why? Simply put, gun owners don't vote for the party in power in the statehouse. Such governments can drive out citizens who value their Second Amendment rights by incrementally infringing on the right to own and carry arms. It's certainly happened here in the People's Republik of Kalyfornya.
11.24.2007 11:31am
Letalis Maximus, Esq. (mail):
Now Clayton, you know that a mini-gun can be picked up and carried. They done in "Predator," you know.

:)
11.24.2007 11:44am
Mike M. (mail):
I don't think it matters.

In most states, machine guns are perfectly legal. You just have to waltz through the background check requirements of the National Firearms Act of 1934 - notification of the local chief law enforcement officer (who will usually run a background check), then submission of fingerprints and photos to the Federal Government for a detailed background check. It's a pain, but in 73 years there have been two criminal misuses of a legally owned machine gun.

Also, using a M2HB to knock over the local convenience store is not a practical proposition. The gun, mount, and ammo will run close to 200 lbs. Best of luck wielding that. Most likely, your intended victim will dodge, step up, and punch your lights out.

That being said, Mr. Cramer alludes to a point that worries me...that we might overplay our hand. Any attempt to turn the Second Amendment into a complete prohibition on the regulation of arms will work strongly against us. A demand for absolute victory will likely lead to absolute defeat. A more moderate stance...well, it makes a victory far more likely.
11.24.2007 12:26pm
Dennis Nicholls (mail):
Well my crystal ball says that the Court will have a majority opinion - perhaps evan unanimous - that the 2nd Amendment ensures an individual's right to keep and bear arms. Where the fracas will probably occur will be in the standard of review. Strict scrutiny? Intermediate scrutiny like in sex discrimination cases? Or a weak standard of review that defers to the Legislative powers? The Court could have it both ways in this manner. They could appease gun-nuts like me by holding the individual's right yet not rock the governmentalist's boat by applying a weak standard of review to the three code sections at issue.
11.24.2007 12:53pm
MGoBlue (mail):
1L-type question:

I know this doesn't really apply to the current case, but how does the application of the 2nd amdt work with regard to states? I don't believe it's been incorporated via the DP cl. of the 14th amdt. Is there something else going on here?
11.24.2007 4:34pm
Deep Lurker (mail):
One of the Constitutional purposes of the militia is to "enforce the laws of the union," and the common law-enforcement firearm is a handgun rather than a rifle.

It seems to me that the police ought to be a militia. They ought to abide by the principle "the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention" to the duties of law enforcement. They ought to think of themselves as civilians, rather than using the term for non-police. And they ought to be armed only with weapons they purchase privately, and that are legal for ordinary private citizens to buy and own.

My preference would be for the Second Amendment to be interpreted in a "sauce for the goose" manner. Reasonable regulation? OK, but if a regulation requires an exemption of any sort for the police or any other civilian government agent, then the regulation is too strict to be reasonable.
11.24.2007 5:19pm
NickM (mail) (www):
Off-topic, but Taney's reasoning was atrocious in Dred Scott. He took the references in certain statutes to "white male citizens" to mean that only whites could be citizens, thus assuming that the legislative bodies responsible for those statutes introduced superfluous language [why male wasn't also superfluous language wasn't discussed]. The concurring opinion, which held that citizenship was not limited to whites, but that states could define citizenship, is much more sound.

Nick
11.24.2007 5:27pm
33yearprof:
My preference would be for the Second Amendment to be interpreted in a "sauce for the goose" manner. Reasonable regulation? OK, but if a regulation requires an exemption of any sort for the police or any other civilian government agent, then the regulation is too strict to be reasonable.


Yes. After all, the police are only authorized to carry and use weapons (rifles, shotguns, pistols, mace, OC, tazers, etc) for self-defense of themselves and others from a imminent deadly threat. Their need is identical to the need of civilians.

They can't bomb houses (except in Philadelphia - but that was a police error) or or flatten them with tanks (except if children are at risk from a cult - but that was an FBI error too).
11.24.2007 5:44pm
tarpon (mail):
It's always amazed me that 9 of the amendments in the Bill of Rights are clearly directed at personal liberty. It is only the second amendment which is singled out as some sort of twisted sister. Yet when you examine the Bill of Rights, you find that the second amendment stands alone as a single right while other amendments contain multiples.

I contend the answer is too obvious. The founders meant what it said, King George was too fresh in their minds. The genocide of late in countries which have a largely unarmed and easily preyed upon people should be lesson enough for us all to understand.
11.24.2007 7:17pm
Tony Tutins (mail):
Miller could have been represented at the Supreme Court: Miller's body was found between oral argument and the time the opinion was issued, according to this collection of Miller-related documents But even as a bank robber, he probably lacked the resources to respond to the appeal. And since the judge had let him go, he had no pressing reason to respond.

Will the Court rule that a long gun is an adequate substitute for a handgun for home defense? Assuming a prudentialist tendency (not strong enough to uphold the ban outright) the Court should agree that a rifle bullet has too much penetrating power for to be used in the home. Shotgun projectiles are effective at close range, but shotguns' length makes them unwieldy in the home. Plus it's hard to lock up a long gun out of reach of a child. Handguns are compact, with relatively low energy projectiles. Relatively inexpensive, quick release safes for handguns are available.
11.24.2007 7:44pm
rfg:
From Armigerous:

"At the time the 2nd Amendment was drafted and included in the Bill of Rights,it was generally understood...a given...that most people would have a musket or rifle or even a brace of pistols at home..."

Unfortunately, this is not true. Most people at the time did not have a gun of any sort, including ones living in high-threat areas. Those guns that were in general circulation were almost mostly provided by the government as part of the effort to arm the militia and usually in poor condition from lack of care.

A gun at the time reperented a significant monetary investment, especially since gunsmiths were almost non-existent in the US at the time. Most people simply could not afford them.

Look at a military hsitory of the Revolutionary War to see just how unarmed (and generally useless) the militia was at the time.

"Arms" in colonial and early post-colonial days were most commonly knives, swords, axes, etc.

BTW, just in an attempt to head off the flmes, I am not anti-gun. While I don't currently own any, it is simply because my life has moved in a different path than when I did own guns (although I will always regret selling my Ruger Speed-Six).
11.24.2007 8:01pm
ReaderY:
Under Miller it is well-settled that the type of arms that the 2nd Amendment covers are the type usable in a well-regulated militia. I doubt the Court will (or should)overrule Miller, and any viable argument would be well-advised to fit within its limits.

I believe that there is a lot of evidence that unlike sawed-off shotguns with less than 18-inch barrells, handguns have long been and remain arms very standardly used in militia-type military organizations and have an eminently reasonable relationship to the preservation and efficacy of a well-regulated militia. The same is true regarding assault rifles.
11.24.2007 8:09pm
RKV (mail):
Paging Clayton Cramer. Paging Clayton Cramer. rfg making factual errors. rfg making factual errors.

FYI rfg, Mr. Cramer wrote the book "Armed America." Your assertion that few Americans had guns is a proven falsehood. Further, I suspect you have never heard of, much less read, the Militia Act of 1792, which created the legal requirement that all able-bodied citizens own military grade weapons.
11.24.2007 9:06pm
PersonFromPorlock:
rfg: put down the copy of Bellesiles and step away from it.
11.24.2007 10:03pm
whit:
"Yes. After all, the police are only authorized to carry and use weapons (rifles, shotguns, pistols, mace, OC, tazers, etc) for self-defense of themselves and others from a imminent deadly threat"

absolutely false. (imminent threat part among others)

police (and in some cases, all citizens of a state) are authorized (in my state) to use deadly force for a # of reasons that extend WELL beyond your listed criteria. read the deadly force statutes of some states (and of course realize these are looked at in accordance with tennessee v. garner)
11.24.2007 11:55pm
Ray Ward (mail):
The one hard question I have not seen answered regarding the collectivist interpretation as applying only to the federal government granting to the states the right to have a militia: Why did so many of the states themselves put provisions very similar to the 2nd Amendment into their own constitutions?

This was done starting in 1776 as the states began adopting their own constitutions, well before the adoption of the Constitution.

Obviously, the states demanded that the federal constitution provide the same protections for the people as the states did in their own constitutions. The states did not have these provisions to grant to their counties the right to form militias, but to the people themselves. The first, Virginia stated this explicitly:

"That a well-regulated militia, composed of the body of the people, trained to arms..."


Hmm... Does that phrasing sound familiar?

There's a concise history of these provisions in the introduction of The Origin of the Second Amendment by David Young, Golden Oak Books, 1991.
11.25.2007 1:25am
rfg:
RKV: I have seen numbers indicating that gun ownership in the colonial era was significantly lower than is usuallly assumed (See "Arming America" by the afore-mentioned Bellesiles). My limited experience with flintlocks (I have only owned two) bear out his assertions concerning the usefulness of same.

I have heard of the Militia Act you mentioned, as well as of a number of similar laws. My understanding is that they were not generally observed.

Unfortunately, every general of the period (say 1720-1820) that actually had to deal with the militia describes them in similar fashion- undisciplined, unskilled, and unarmed.

The remarkable thing is that this is actually beside the point- the Second Amendment's grant of individual rights doesn't depend on the amount of guns in circulation in 1789, or does it?
11.25.2007 8:31am
RKV (mail):
rfg: Bellesiles lost his professorship at Emory for academic fraud in the writing of "Arming America." That you should rely on his work eliminates your arguments from serious consideration.
11.25.2007 8:42am
Kevin Baker (mail) (www):
NickM wrote:
Off-topic, but Taney's reasoning was atrocious in Dred Scott. He took the references in certain statutes to "white male citizens" to mean that only whites could be citizens, thus assuming that the legislative bodies responsible for those statutes introduced superfluous language [why male wasn't also superfluous language wasn't discussed]. The concurring opinion, which held that citizenship was not limited to whites, but that states could define citizenship, is much more sound.
My point was that, while Taney's reasoning with regard to citizenship was flawed (but understandable, given the period), he and the rest of the majority understood precisely the rights they were denying to blacks.

And rfg? I strongly recommend you pick up a copy of Clayton Cramer's Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie. (Available through Barnes &Noble.) It's pretty much a point-by-point refutation of Bellesiles' fraud. And you can check Clayton's research. His primary sources didn't disappear in the Great San Francisco earthquake and fire.
11.25.2007 12:13pm
Letalis Maximus, Esq. (mail):
Mike M:

Before you get too excited machine guns being legal in most states, take another look at 18 U.S.C. 922(o). The fact that pre-1986 tranferable machine guns are legal for individual civilians to own in most states doesn't do us one bit of good when you consider that because of 922(o) they now start at $3500. And that is for the least desirable of them all: Gordon Ingram's ghastly little MAC.

The rest of them now start at about $10,000. The one I want, the great Stoner 63 that was carried with valor by the SEALS in Viet Nam, is about a $75,000 proposition. If you can find somebody who has one they will sell.
11.25.2007 2:13pm
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/26/2007 A short recon of what's out there that might draw your attention, updated throughout the day...
11.26.2007 11:10am
Don Miller (mail) (www):
It seems that most of you are uninformed about the limits on weapons ownership in the US.

In the US private citizens can and do own Tanks and other armored vehicles. Not 10 miles from where I sit is a dealer with two tanks, 3 APCs and 2 armored cars on display and for sale. They also own artillery. Most privately owned artillery is black powder civil war ere stuff, but mostly because there is no regulation about it's ownership.

These are fully functional. True, APC's are more common than tanks. Tanks with their main cannon disabled are more common than tanks with it still working.

A Tank Cannon is classified as a "Destructive Device". You have to have ATF approval in advance to purchase one. You usually have to have local law enforcement approval as well. Fingerprints and a $200 fee, US Citizen, No Felonies, over 21.

If you fired explosive shells, each shell would be a DD as well with the $200 per shell fee assessed. If you fired solid shot, the DD would not apply to the shells. It takes 1/4 oz of explosive minimum to qualify as a destructive device. The gunpowder used to propel the round does not count to the 1/4oz limit.

There are a few 20mm cannons in private hands. They fire an explosive round. The $200 DD label applies to the cannons, but not the rounds because the individual rounds don't have enough explosive to meet the DD requirements.

Generally the DD label is applied to any weapon (other than blackpowder) that fire a round larger than .50 inches.

To the best of my knowledge, Tanks with disable cannons are largely unregulated. APCs without weapons are the same, largely unregulated.
11.26.2007 12:28pm
Maureen001 (mail):
"...One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?..."


"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed upon."

Doesn't say "the right of the people to keep and bear Muskets". That's why not, Professor Lund.
11.26.2007 6:22pm
Maureen001 (mail):
"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 upon."

It's those crazy, nonsensical questionably grammatical commas that throws this entire thing into confusion. If "...Being necessary to the security of a free State" is parenthetical to the initial phrase, "A well-regulated Militia", then the concluding phrase "shall not be infringed upon" makes sense when coupled with "...the right of the people to keep and bear Arms". But that phrase is not put in parentheses, is it?

If it's that a well-regulated Militia is necessary to the security of a free State, and because of that the right of the people to keep and bear Arms shall not be infringed upon then there need not be the first comma nor the last.

If the commas are listing items applicably descriptive to the final phrase, a typical use of commas in sentencing, then the phrase "being necessary to the security of a free State" makes no sense.

If the meaning of the sentence is that because a well-regulated Militia is necessary to the security of a free State, therefore the right of the people to keep and bear Arms shall not be infringed upon,then the last comma is extraneous.

The sentence is grammatically poorly constructed. It was commented above that the Second Amendment is one of the few one-sentence, one-clause, one-topic Amendments. I can't help but wonder if it was inadequately edited and if all the debate and argument is the result of an editing faux pas.

The Ninth Amendment, however, has its share of extraneous commas: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The remaining Amendments have their share of commas used incorrectly as well.

So, has all this bitter debate been the result of an outmoded literary style or an improperly educated scribe? Perhaps. I've certainly heard plenty of "separation of church-and-state" supporters quote "Congress shall make no law respecting an establishment of religion," while omitting the following phrase "or prohibiting the free exercise thereof". Would this happen if that bothersome comma was not there?

Perhaps.
11.26.2007 8:23pm
Tony Tutins (mail):
Maureen, originally the comma was used to indicate where a speaker should pause to draw a breath; it did not necessarily have any grammatical significance. Try reading the amendment aloud, and see where the pauses would go.

As I would untangle the phrasing of the amendment, the right to keep and bear arms is the necessary prerequisite to having a well-regulated militia, which is necessary to the security of a free state.
11.28.2007 10:48am