The Libertarian Gun Fallacy
In my weekly column for the Hoover Institution online journal Defining Ideas, I argue that the Second Amendment imposes no limitations on the states.
In dealing with the right to keep and bear arms under the Second Amendment, libertarians often treat the issue as though it were just a question of individual rights against government. Libertarians thus rejoice in the opinion of Justice Antonin Scalia in District of Columbia v. Heller, which protected the right to keep and bear arms in Washington D.C. Scalia’s key interpretive move was to treat the first clause of the Second Amendment as having no independent force, so that the amendment reads, “the right of the people to keep and bear arms shall not be infringed.”
This analysis, however, misses the key federalism component of the Second Amendment. To see why, it is necessary to plow through a set of gritty and interconnected constitutional provisions. The first of these provisions is the Second Amendment itself, which states in full:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The central interpretive challenge of this amendment is how the first portion of it, up to the words “a free State,” relates to the substantive guarantee that is set out in the rest of the clause. The first clause is incredibly important as it establishes that federalism trumps individual rights when it comes to gun ownership. The federal government cannot regulate what goes on in the states, but the states are free to regulate weapons without regard to the Second Amendment, which does not apply to them. The Constitution is crystal-clear on this point, as I explain further over at Defining Ideas.
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May '10
Re: The Libertarian Gun Fallacy
Wouldn't that same logic apply to the "Congress shall make no law" part of the First Amendment as well? Were these guarantees not later explicitly applied to the States?
Edited on Jan 31 at 3:43amJun '10
Re: The Libertarian Gun Fallacy
Also what does bear mean? and who makes the decision to bear if not the individual?
May '11
Re: The Libertarian Gun Fallacy
Professor, surely you jest. The 14th Amendment incorporates the second. Your claim that the militia clause restricts the individual flies in the face of historical reality.
May '11
Re: The Libertarian Gun Fallacy
I have to disagree with Professor Epstein's analysis. The first clause explains the reason for the substantive and individual right set forth in the second clause. It does not confer on the states the power to infringe on that right unduly. Of course, that does not mean the right is completely unfettered. No Constitutional right is completely unfettered; e.g., the First Amendment does not protect the right to yell “fire” in a crowded theater.
Consider this hypothetical language: “The need for a safe and plentiful food supply being essential to the general welfare, the right of the people to grow and market foodstuffs shall not be infringed.” Does that language mean that the states, but not the federal government, can regulate the production of food? I don't think so. The Second Amendment recognizes that an effective militia cannot exist without an armed citizenry. (Continued...)
May '11
Re: The Libertarian Gun Fallacy
Professor Epstein argues that the word “militia,” today, means the National Guard. However, the term “militia” means, and always has meant, an armed citizenry. This is reflected in 10 U.S.C. 311(b)(2), which defines the militia to include “the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.” Replace the word “militia” with the words “armed citizenry available to defend the State” in the Second Amendment, and read it again. It is not susceptible to the meaning Professor Epstein asserts.
Dec '11
Re: The Libertarian Gun Fallacy
I think the 2nd is a limitation on the FEDERAL government to ban firearms. Much that the 1st was also a specific limitation on the federal government. The 14th applied many of these things to the states and we have been arguing about it ever since.
We should consider original gun control laws were passed as taxes to restrict the sale of some firearms (kind of like a poll tax). The assumption has always been that the 2nd limited the federal government, and that the states and localities had a freer hand in these affairs. If the 2nd amendment applied to the states as originally written the many state constitutions that contain similiar language would be redundant and would not have been written.
There is a stated purpose to a specific restriction. If we conclude that the purpose is an anacronism, then that would still not change the restriction, until we pass an amendment to change the restriction.
I am open to arguements either way on the incorporation of the 2nd under the 14th. I think that there is enough states with similiar language in their constitutions to make the judgement that it is a viable candidate for incorporation.
May '11
Re: The Libertarian Gun Fallacy
I also believe that the 2nd was incorporated by the 14th so it too applies to the states. I think that pre-14th amendment, Prof. Epstein is correct. However, I don't see any good argument that the 2nd wasn't incorporated by the 14th. Of course, the whoel problem with the theory of incorporation under the 14th amendment is that it opens us up to the problem that the Supremes get to decide what has been incorporated and what hasn't.
May '11
Re: The Libertarian Gun Fallacy
"Indeed, today’s National Guards are the state-based successors to the militias of the founding period"
This is utter nonsense. The militias were envisioned as a modern (for the 18th century anyway) equivalent of the Greek citizen hoplites who supplied their own panoply of armor and formed an army when needed. Each citizen was expected to keep and maintain his arms and be prepared to assemble when called.
The national guard is not in that sense a militia. It has been so controlled and commandeered by the federal government that it can only barely be considered a state military force. Every guardsman must take a federal oath as well as a state oath. They are equipped and armed by the federal government. This is not a militia, this is just a reserve force that also has state police power.
The militia, as encoded in Title 10, includes both the organized and unorganized militia. The unorganized militia is "consists of all able-bodied males at least 17 years of age . . ." The second amendment allows for them to keep and bear arms to be ready to perform their duties to defend their state and their nation.
Edited on Jan 31 at 6:12amMay '11
Re: The Libertarian Gun Fallacy
Here is the pertinent text of Title 10.
TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311
(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.
(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.
Edited on Jan 31 at 6:16amRe: The Libertarian Gun Fallacy
Does he? It looks to me as if this is what he wrote:
And
It's a bit ambiguous, isn't it? Professor Epstein, what exactly did you mean to say? That they are the successors, historically, or that the word means the same thing?
Jun '11
Re: The Libertarian Gun Fallacy
"The central interpretive challenge of this amendment is how the first portion of it, up to the words “a free State,” relates to the substantive guarantee that is set out in the rest of the clause. The first clause is incredibly important as it establishes that federalism trumps individual rights when it comes to gun ownership. The federal government cannot regulate what goes on in the states, but the states are free to regulate weapons without regard to the Second Amendment, which does not apply to them."
But wait, Professor, the word in the introductory clause is "State," not "States." The "free State" referred to here is a generic reference, as in "a free society." If the Framers had meant to say "States," as in States rights, they would have done so. See, e.g., the 10th Amendment (rights are reserved "to the States or the people").
May '11
Re: The Libertarian Gun Fallacy
Claire, the problem is that the good professor is completely wrong about what the militia is, per historical record of the 18th century when the Bill of Rights was ratified and per current statute. It's a huge error on his part and he should explain what he meant or correct his error.
Dec '11
Re: The Libertarian Gun Fallacy
Colin B Lane:
But wait, Professor, the word in the introductory clause is "State," not "States." The "free State" referred to here is a generic reference, as in "a free society." If the Framers had meant to say "States," as in States rights, they would have done so. See, e.g., the 10th Amendment (rights are reserved "to the States or the people"). · 3 minutes ago
This is probably the most persuasive thing I have ever read on the subject ever.
Dec '10
Re: The Libertarian Gun Fallacy
Skyler: (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.
(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. · 4 minutes ago
A few years from now when I hit 45 and am no longer part of the unorganized militia does my right to keep and bear arms end? If the right is strictly bound to service in the militia then I can see no other reading.
Jun '11
Re: The Libertarian Gun Fallacy
Guruforhire
Colin B Lane:
But wait, Professor, the word in the introductory clause is "State," not "States." The "free State" referred to here is a generic reference, as in "a free society." If the Framers had meant to say "States," as in States rights, they would have done so. See, e.g., the 10th Amendment (rights are reserved "to the States or the people"). · 3 minutes ago
This is probably the most persuasive thing I have ever read on the subject ever. · 8 minutes ago
I must confess that the idea literally just occurred to me for the first time as I read Professor Epstein's piece. Unfortunately, because it just occurred to me, I have no idea whether there is any historical support for the argument or not. But it does seem kind of logical.
Apr '11
Re: The Libertarian Gun Fallacy
Fortunately for us we have the NRA to help counter these tired old statist arguments.
May '11
Re: The Libertarian Gun Fallacy
The King Prawn
A few years from now when I hit 45 and am no longer part of the unorganized militia does my right to keep and bear arms end? If the right is strictly bound to service in the militia then I can see no other reading. · 23 minutes ago
Perhaps, but I think a more logical interpretation is that because militias need arms, then the right to possess them will not be infringed. Note that the militia goes to age 64 for those in the national guard. That is, being in the militia is compulsory to age 45, but voluntary to age 64.
Apr '11
Re: The Libertarian Gun Fallacy
"In recent years, it has been suggested that the Second Amendment protects the "collective right" of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no writing surviving from the period between 1787 and 1791 states such a theses." Stephen P. Halbrook
http://stephenhalbrook.com/
May '11
Re: The Libertarian Gun Fallacy
I think that not only is the good professor completely out to lunch on this matter, but that using the militia argument, one should conclude that possession of arms is compulsory while in the militia and that includes every able bodied male from 17 to 45. For the rest of us, it is not compulsory to own weapons.
Dec '10
Re: The Libertarian Gun Fallacy
Some thoughts, Professor.