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A Response on Guns
A few Ricochet members have thoughtfully engaged with my comments on the nature of the Second Amendment in the most recent episode of the Libertarian podcast, which can be found here.
Whiskey Sam wrote the following:
Richard ignores any context of what influenced the writing of the 2nd amendment, its philosophical underpinnings, and the arguments made during ratification of the Constitution in the Federalist Papers and other debates of the time. The idea that it is limited to forming a militia doesn’t hold up when taking all of this into consideration nor when considering the English Bill of Rights of 1689, which was a major influence on the Founders and goes far beyond a simple right for forming a militia.
Tough criticism, so I took a look at the English Bill of Rights of 1689 to see what it had to say about guns. Here is the applicable text:
“That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;”
The differences are too obvious to count. The restriction to Protestants is not part of the Second Amendment. There is no reference to any militia, which was not a creature of English law because England is not a federalist nation, but a unitary state; and the privilege, even for Protestants, is hedged in by limitations that are unspecified but surely substantial.
It was indeed a common feature for the English to give extensive rights and then to subject them to extensive limitations without guidance or explanation. The federalism elements in the Second Amendment are unmistakable. It is dangerous to go too far beyond them.
Published in General
Having just gone through a debate about this topic on Facebook, I took it upon myself to read Federalist 29.
My takeaway from the text is that Madison anticipated that the bulk of what was to make up the body of the “Militia” was to consist of ordinary citizens and not professional soldiers and that in order to have a viable body of men able to take up arms that people needed to have the right to own guns.
Does that mean you should be able to own a tank, or a claymore mine? No – as Justice Scalia has explained the term “arms” referred generally to things that could be carried by men for the normal purposes of self defense.
Lastly, it also seems to me that the placement of the 2nd Amendment in the Bill of Rights was no mistake – that the Second Amendment and the First were meant to be intertwined, and that without one protecting the other both would soon collapse.
At last.
I’ve been waiting for this particular showdown for a long time.
You could debate forever the exact issue that every legal scholar has already debated- exactly what is meant by the term “well regulated militia”? Five members of SCOTUS, John Yoo, the 2nd Circuit, etc. disagree with Richard. That does not make them right and him wrong, or vice versa. It just means that there is a disagreement over something that is genuinely vague in its actual expression.
The NRA position has the better of the argument as a 21st century policy matter. Who knows exactly who is right regarding the 18th century drafting?
The reference to the English Bill of Rights of 1689 is not to say it is identical to the 2nd amendment but rather to point out that the concept of the right for private citizens to own and use firearms is not based on a misreading of the amendment but a contextual understanding of how the Founders understood the right of owning and using firearms.
The English Bill of Rights was more a revocation of acts of James II that restricted Protestants’ rights while allowing his Catholic supporters to arm themselves. It didn’t establish a new right but reiterated a pre-existing one: that men had, within the right to self-defense, a right to arm themselves for that defense, but the English did agree this was a right that had limitations. Those limitations were subject to Parliament, though, not the monarch. And these concepts go back even further into the past, but, especially in that era, Locke’s writings on self-defense and the use of force (even against the king) were influential.
There are parallels in British behavior before the Revolutionary War towards the patriot militias and attempts to disarm them. After British oppression due to colonial response to the Townsend Acts, a Boston newspaper wrote in 1769: “It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and…it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.” This right is reiterated in state constitutions written in the same era.
Madison discusses in Federalist 46 the idea of the armed populace organized by local government into militias as a resort against an overreaching national/federal government, and goes so far as to declare that being armed was an advantage the American had over people of almost every other nation.
The prevailing concept at the time of the Founders seemed to be threefold: to repel foreign invaders when needed, to repel internal usurpers of governmental power, and to provide for one’s own self-defense. These rights were broadly recognized, and, if not codified in the 2nd, are covered by the 9th amendment.
Section 27 of the Oregon Constitution seems to leave a lot less room for legal interpretation.
“The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power” Section 27 of the Oregon Constitution
Ordinarily I would prefer to only look at the text of a given law or founding document, as that is what was ratified. However, when you have such a basic disagreement as to what the amendment actually means, you have to look at the intent of those who did the ratifying.
All of the evidence suggests they intended it to be an individual right, no matter how awkward people find the militia phrasing.
Right – and why would the other rights listed in the Bill of Rights be so explicitly individual while just the Second Amendment is left to stand as a one-of collective right? That makes no sense.
The Founders understood that society is made up of individuals, not a series of collectives. Beyond that, it makes no sense for a collective of people to have the right to own firearms but not the most granular piece of that collective. Who gets to figure out which groups own the guns, which guns and how many? There’s no authority in the Amendment or in the Constitution granted to the state to figure that out, merely a prohibition placed on the Congress of what not to do.
That same generation of men passed the Militia Acts in 1792 which were explicit in stating that citizens were to provide their own weapons when called into service. Logically, if they have to provide and house their own weapons, they are also expected to know how to use them. They don’t get familiar with using them if they’re only allowed to use them when the militia is needed.
Damn, Whiskey.
A collective reading of the 2nd amendment makes assault weapon ownership mandatory.
Perhaps Justice Scalia can point out to me just where in the constitution there is a prohibition of citizens to own tanks or claymores. Men of the founding times and later owned cannons. Real, fire-breathing, serious cannons. Indeed privateers of the day were ALL armed with privately purchased and owned cannon. And that was certainly the “tank” of the day.
The simplest and truest reading of both the founding times sentiment and the constitution says that I should have the right to own whatever it is that I wish to own. Government should not determine what I own; my personal desires and my pocketbook should be.
WS – you are a man of my own heart. Your commentary on founding times is spot on. To simply add to your comments, it is important to note that 12 of the 13 colonies had laws about the duty and responsibility of the common citizen to organize and train in local militia units. The exception was Pennsylvania (Quakers) and even there, when word spread of a collection of ruffians marching on Philadelphia to throw out the government with arms, hordes of local Quakers showed up armed to resist.
The argument that the Second Amendment only protects states’ rights to maintain a militia is one of the most dishonest canards in the history of jurisprudence.
Partially summarizing prior posts, it conflicts with:
1) The plain meaning. For example, it requires an interpretation of “people” different from the interpretation of that term everywhere else. Also, keeping and bearing are how one would describe an individual right not a state right (e.g., maintaining a militia…).
2) It’s placement in the Bill of Rights.
3) There already being a militia clause in Article 1. You noted this, but did not establish what the Second Amendment with your interpretation adds to this.
4) States having similar constitutional provisions. Clearly, these are individual rights, not protection of a state right against the federal government.
5) The practical effects as its advocates put into practice. Your interpretation apparently allows Rick Perry to authorize all Texans to arm themselves with an M4 carbine, trumping the National Firearms Act. Do you agree? Please argue this to everyone else who shares your interpretation.
On the NFA, I would only say that it is basically unconstitutional. It gives the government say on what “type” of weapon a citizen “may” own – rather taking away the whole concept that he is allowed to be “armed”. Being armed is not a state definition; it is a personal one.
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
Taken from here.
It seems to me that Mr. Mason felt that the “whole people” have the right to possess firearms, otherwise there would be no militia.