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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Apr '11
Re: The Libertarian Gun Fallacy
"The states' rights reading [of the Second Amendment] puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. Thus, as noted above, "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens."
"In 1789, when used without any qualifying adjective, "the militia" referred to all citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection - the "militia" is identical to the people...Indeed, the version of the Amendment that initially passed the House, only to be stylistically shortened in the Senate, explicitly defined the "militia" as "composed of the body of the People." This is clearly the sense in which "the militia" is used in clause 16 and throughout The Federalist Papers, in keeping with standard usage"
Akhil Reed Amar
Jan '12
Re: The Libertarian Gun Fallacy
Doesn't "people" in "right of the people to keep and bear arms" in the Second Amendment mean the same as "people" in "powers...to the States respectively, or to the people" (emphasis mine) in the Tenth? The grammar suggests that the people are distinct from the states. If so, the right to bear arms belongs to the person as such, not to his position in a state militia. Such a reading accords with the natural right to self-defense held by most if not all of the Founding Fathers. It also reflects those state constitutions, which were written before the Bill of Rights, that acknowledge the right of the citizen to bear arms.
The opening clause appears much more circumstantial or ancillary than causal.
Oct '10
Re: The Libertarian Gun Fallacy
The argument seems to be: the only reason given for preventing the Federal government from interfering with a person's right to bear arms is the utility of this right to the States, therefore this right does not qualify as a Privilege or Immunity for the purposes of the 14th Amendment. I don't find this a slam dunk, to say the least.
(As for the passive voice, almost all the Amendments are so stated.)
And, of course:
Jul '11
Re: The Libertarian Gun Fallacy
I'll make this perfectly clear. My legal weapons, if somehow made illegal ( handguns for instance ) will never be turned over. I am prepared to take that statement to it's fullest conclusion.
Edited on Jan 31 at 2:11pmMay '10
Re: The Libertarian Gun Fallacy
To be completely honest, I wouldn't care even if the professor's interpretation was correct.
Citizens of any government only have what freedoms they have the power to keep. Otherwise, they have only what freedoms politicians choose to grant them.
As much as Americans prefer to cite ideals, liberty is ultimately dependent upon power... and individual liberty is dependent upon individual power. Take away the ability of individuals to guard our own freedoms and we become utterly dependent upon the whims of officers. Self-reliance is a cornerstone of American culture.
We have already witnessed an erosion of freedom as laws and police have become the arbiters of justice where once individuals and neighbors guarded themselves and each other. We are protected like children, and so our freedoms are increasingly limited to those of children.
In short, lawyers can make it harder for us to buy guns, but they will only take our guns from our cold, dead hands.
Mar '11
Re: The Libertarian Gun Fallacy
People keep saying Professor Epstein is a real smart guy, and I'm sure he is, but he has this aversion to simple answers that leads me to take him less seriously than I otherwise might.
I think he needs to have a long talk with Thomas Sowell.
Re: The Libertarian Gun Fallacy
At the risk of paraphrasing Larry3435, two big problems have bedeviled Second Amendment jurisprudence. First is the relationship of the introductory clause, which was for some time in the 20th century held to be a limitation—though now, correctly, I think, tends to be regarded as a description of the intent of the clause, without any particular effect on the main clause.
That is, “Pancakes being delicious, the right of the people to syrup shall not be abridged” is closer to the modern reading—which is to say that no matter if you don’t like pancakes, no matter if society’s tastes swing away from pancakes, the right to syrup remains.
Secondly, the meaning of “militia” was disputed, but Joyce Lee Malcolm (To Keep Bear Arms: The Origins of an Anglo-American Right, 1996) and others have successfully established (to the satisfaction of Prof. Amar, et al.) that in eighteenth-century usage, a militia was not an organized, semi-standing military body like the National Guard, but an armed citizenry who could act as such in emergencies, assisting the constabulary, predating standing police forces (London’s Bow Street Runners 1749, Marine Police 1798, the Met 1829).
Re: The Libertarian Gun Fallacy
Anyway, the modern reading which seems to be, “Because an lawfully armed citizenry supports ordered liberty, people must be able to arm themselves,” is to my lights more coherent than the mid-century reading of, “Because the state requires semi-standing, quasi-military bodies, people may under certain circumstances be permitted by their local governments to obtain weapons.” Especially since the relationship of the weapons in the hands of the people to that of the putative National Guard is completely obscure. If the Founders were concerned with having people skilled at using weapons in order to incorporate them into state militaries, the obvious solution is compulsory weapons training.
In 1789, we are a few years before the French Revolution introduces compulsory conscription and a few decades before the Prussians basically invent the “train people, send them home, then when Napoleon shows up again, call them up and blow his army to bits on their way back from Russia” system of, more or less, a military reserve. It's conceivable the Founders may have been far-sighted enough to anticipate something of this nature (though on a continent noticeably not troubled by large-scale wars between standing armies)…
Re: The Libertarian Gun Fallacy
…but it’s far more likely that twentieth-century scholars were reading their own anachronistic understanding of “militia” into the constitution and then bending the meaning of the Amendment to that understanding. This was is not necessarily a matter of bad faith, of course, though given that early gun-control laws were justified in terms of the need to disarm disfavored populations like blacks in the South or immigrants in New York City, it’s probably more likely the case that at least some opponents of the historical understanding of the right may have been motivated by unworthy motives.
Apr '11
Re: The Libertarian Gun Fallacy
Also, something to keep in mind, the founding fathers could count and order. It means something that this is the SECOND amendment whose precedence in the Bill of Rights is second to only one other amendment. Or do you imagine they drew the order of the Bill of Rights out of a hat?
Mar '11
Re: The Libertarian Gun Fallacy
In practice, the National Guard is not a state militia, but nothing more than a reserve component of the active duty United States Army. It is commanded by, funded by, and trained by the Army. It follows Army doctrine and regulations. It uses uniforms and weapons supplied by the Army. Calling it a militia really is a falsehood in all honesty.The only difference between a National Guard unit and an Army Reserve unit is that the state governor can activate a Guard unit, but his powers are very restricted.
Oct '10
Re: The Libertarian Gun Fallacy
Interesting there is no mention of the Swiss model of an armed populace here. Appears to be more to the point and intent of the 2nd. If this concept is to be dissmissed out of hand, would like to hear why.
Mar '11
Re: The Libertarian Gun Fallacy
Wow, Richard Epstein supports gun control? Whoda thunk it?
However, depsite my ignorance with both the gun rights debate and the Constitution in general, I have also found the Heller decision puzzling:
If the first, "dependent" clause of the 2nd Amendment has no bearing whatsoever on the declarative part, why is it in there at all? There are certainly no other "commentary" clauses in the Bill of Rights which can be excised without changing the meaning of the amendment, so why should the "well regulated Militia" clause be irrelevant?
Mar '11
Re: The Libertarian Gun Fallacy
Careful with that argument, lest you play into the hands of the many who would like to ignore the 10th Amendment.
Dec '10
Re: The Libertarian Gun Fallacy
Well said, sir. I concur wholeheartedly.
I have found from listening to Law Talk, that if you allow Mr Epstein to speak long enough, eventually he will get around to saying something idiotic and then when called on it will spend the next hour defending it (instead of just admitting that he got carried away).
Regardless of what the original intent was, or any of the other semantic arguments, the problem (and my stance on it) boils down to this: An armed man is a citizen. An unarmed man is a subject.
I am heartily disinclined to live the life of a subject.
Jul '11
Re: The Libertarian Gun Fallacy
CoolHand
Well said, sir. I concur wholeheartedly.
I have found from listening to Law Talk, that if you allow Mr Epstein to speak long enough, eventually he will get around to saying something idiotic and then when called on it will spend the next hour defending it (instead of just admitting that he got carried away).
Regardless of what the original intent was, or any of the other semantic arguments, the problem (and my stance on it) boils down to this: An armed man is a citizen. An unarmed man is a subject.
I am heartily disinclined to live the life of a subject. · 8 minutes ago
Well put and I'll add Heinlein, "An armed society is a polite society"
Edited on Jan 31 at 2:12pmRe: The Libertarian Gun Fallacy
Are we now to believe that a great armed rebellion against The Crown was fought by armed citizens in order to provide a Constitutional right of the state to arm its citizens for its own defense and not that of the people themselves? Mindful of the many good lawyers here, I nevertheless respectfully submit that there is no plain-spoken sentence in the English language that cannot be twisted and contorted beyond all good sense by a lawyer. As our Declaration states, our rights come from the Almighty, not an Olympian Council in black robes. The right to self defense is not negotiable, period. I predict that when we eventually lose the last of our liberties, it will be at the hands of unaccountable jurists, hurling their edicts like thunderbolts from on high, and walking away without so much as a single comment.
Mar '11
Re: The Libertarian Gun Fallacy
I've always thought that the 2nd amendment was binding on the states prior to the 14th amendment. The five freedoms of the 1st amendment are protected by the phrase, "Congress shall make no law..." and we know, for example, that states did have established religions at the time of enactment.
The 2nd amendment is worded more strongly, it says the right, "...shall not be infringed." It does not say, "...shall not be infringed by Congress."
Oct '10
Re: The Libertarian Gun Fallacy
DocJay
CoolHand
Well said, sir. I concur wholeheartedly.
I have found from listening to Law Talk, that if you allow Mr Epstein to speak long enough, eventually he will get around to saying something idiotic and then when called on it will spend the next hour defending it (instead of just admitting that he got carried away).
Regardless of what the original intent was, or any of the other semantic arguments, the problem (and my stance on it) boils down to this: An armed man is a citizen. An unarmed man is a subject.
I am heartily disinclined to live the life of a subject. · 8 minutes ago
Well put and I'll add Heinlein, "An armed society is a polite society" · 3 hours ago
Edited 3 hours ago
That also implies someone entering your home should be be free of asking, Why am I standing on plastic ? If asked to surrender a weapon, the reply is, Sure, grab the end of this.
Jul '11
Re: The Libertarian Gun Fallacy
Wilber forge, that is funny and a nice channeling of Goodfellas.