Contributor Post Created with Sketch. John Paul Stevens’ Gun Problem

 

This past week, former United States Supreme Court Justice John Paul Stevens boldly called for the repeal of the Second Amendment, which reads in its entirety: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Justice Stevens made two arguments. First, he claimed that the late Justice Antonin Scalia misread the Second Amendment when he held in D.C. v. Heller (2008) that it prevents the District of Columbia from prohibiting Dick Heller, a D.C. special policeman, from keeping or carrying a side-arm in his home for the purposes of self-defense. Justice Scalia said that the Second Amendment protects an individual right to keep and bear arms, unconnected with service in the militia. Second, spurred on by the mass killings at Parkland High School, Justice Stevens argued that the Second Amendment, as construed, was a “relic” that imposed outdated restrictions on the proper regulation of guns.

Stevens goes one for two. He is right that Scalia’s reading of the Second Amendment is incorrect, but wrong to think that Scalia’s interpretation of that amendment precludes any sensible reform in gun regulations. The constitutional and policy issues are often linked politically, but they are conceptually distinct and thus best considered separately.

Justice Scalia’s opinion in Heller has been praised for its sound originalist approach to constitutional law, which gives the text its ordinary meaning in the context of its own time. But Heller fails by that test, even if we accept that the Second Amendment protects an individual, as opposed to a collective, right. Scalia’s error becomes clear in light of the following question: Which individuals have this right against which political entities?

Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army. Although widely unappreciated, the Constitution in both Articles I and II divides the authority over state militias between the federal government and the states. In the first instance, the states control the militia, but they must train them in accordance with Congress’s standard “discipline” (i.e. training regimen) so that separate militias can work together if called into the active service of the United States. That, however, can happen only for three limited purposes: “to execute the Laws of the Union, suppress Insurrections and repel Invasions,” but not to engage in overseas adventures. The President, as Commander-in-Chief, may call up the militia for these purposes, but only when authorized by Congress. Nothing in this constitutional scheme has the slightest application to the District of Columbia.

Viewed against this background, the Second Amendment ensures that individual members of the state militia had (along with state governments) standing to prevent the federal government from undercutting this countervailing state power, by banning any individual in the “unorganized” militia from keeping or bearing arms. The Second Amendment is written in the passive voice so that it does not specify against whom its command runs. But the Bill of Rights as a whole was understood at the time of its formation only to create rights against the federal government, and not against the states. On this view, it is wrong to treat the initial clause of the Second Amendment as though it only refers to one purpose among many, when its entire purpose is to stabilize the relationship between the states and the federal government.

More specifically, the phrase “security of a free state” has to mean one of the free states of the United States. Unfortunately, Justice Scalia takes the odd view that “state” in this context refers to “any polity,” which could include foreign nations like France that don’t have states, let alone state militias. Missing this key linkage leads Justice Scalia to treat the first half of the Second Amendment as if it has no operative effect. Yet in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

Even if Heller is right, what follows? Is there any need to go through constitutional hoops to repeal the Second Amendment? Not really. Once Scalia excised the first half of the Second Amendment, he had to incorporate some principled police power exceptions into the text, for otherwise, every hardened criminal could insist on carrying weapons on airplanes or in public places. The gist of Scalia’s opinion, doctrinally, is to raise the level of scrutiny given to gun regulations, and his modest conclusion was that keeping or carrying a gun in your own home poses no real threat to public safety. As defenders of Heller, like Robert Levy of the Cato Institute, have observed, much wiggle room is built into the Second Amendment by Scalia’s critical concession that Heller does not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools… or laws imposing conditions and qualifications [such as background checks] on the commercial sale of arms.” Liberal commentators like Matthew Yglesias have reached the same conclusion.

So what is this fight about anyhow? Justice Stevens would like to impose regulations that raise the age of gun ownership from 18 to 21; he would like more “comprehensive” background checks before issuing permits; and he would like to outlaw bump stocks. But how many lives would these and similar measures save? It goes largely unnoticed that the rate of gun deaths in the United States since 1993 has fallen by about one half, even as the number of guns has increased. Between 2012 and 2016, on average 35,141 people died from gun violence each year. Homicides accounted for 12,726 deaths, or less than 40 percent of the total, while suicides accounted for 21,637, or over 60 percent of the total. During this period, the number of guns in the country rose by 50 percent. At the same time, the population rose from around 260 million to around 316 million in 2013, or about 17.6 percent. Suicide rates have declined only slightly over that same period. It is hard to imagine how any gun control law could tamp down on the number of gun suicides.

As to gun violence against other persons, rifles and shot guns contribute to only a small fraction of the killings—770 in 2016 compared to 7,105 by handguns and 3,077 by other kinds of guns. Knives were used in 1,604 killings as well. Death from mass killings have, as should be expected, fluctuated wildly over the past 30-plus years. In over half of those years, the total has been under 20 deaths per year. The highest years were 2013 at 70 and 2016 at 60. In the worst years, therefore, these horrific killings have amounted to only 0.6 percent of the total gun homicides. The popular salience of mass killings is intense. But no one offers any estimate of the lives saved if Stevens’ reforms were put into place. If the desire is to stop gun killings, it is far better to look elsewhere.

But where? Well over 90 percent of killers do not buy guns from dealers. They get them through the second-hand market or steal them. Indeed, the effects in these cases could easily be the opposite, for a preoccupation with gun sales could shift attention away from other steps that might—just might—reduce deaths further. One simple possibility is to enforce the current gun laws more strictly and to increase penalties for gun theft. Another is to rethink the policies about civil commitment for people like Nikolas Cruz, who was documented to have bizarre behaviors though nothing was done in response. A third option is to allow or require experienced gun users—police and military officers—to carry side-arms off-duty when they are out in public.

These steps will have only a small effect on mass killings, which are high-visibility, low-probability events. Indeed, at present, we have no idea of how many people were foiled or deterred by the precautions now in place, so most likely any form of gun regulation would only lead to incremental improvement. Sadly, in a nation with over 325 million people, occasionally some deranged person will slip through the net no matter what legal safeguards are in place. We have made steady progress on gun and other forms of violence. Perhaps more can be done. But Justice Stevens spreads false hopes by claiming that any of his cherished reforms could make a real dent in the number of gun deaths.

© 2018 by the Board of Trustees of Leland Stanford Junior University

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  1. ctlaw Coolidge

    Richard Epstein: The Second Amendment is written in the passive voice so that it does not specify against whom its command runs. But the Bill of Rights as a whole was understood at the time of its formation only to create rights against the federal government, and not against the states. On this view, it is wrong to treat the initial clause of the Second Amendment as though it only refers to one purpose among many, when its entire purpose is to stabilize the relationship between the states and the federal government.

    Your cited Barron v. Baltimore only shows that Marbury v. Madison was not Marshall’s only abuse of the English language to corrupt the Constitution for political purpose.

    Unlike the 1A, the text of the 2A is not phrased as a bar on Congressional power, but as a general bar. The men who wrote the 2A knew the difference between the people, the states, and Congress. William Rawle appears to have regarded the primary benefit as preventing state overreach:

    The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

    • #1
    • April 2, 2018, at 12:26 PM PDT
    • 8 likes
  2. Nick H Coolidge

    Richard Epstein: Scalia’s error becomes clear in light of the following question: Which individuals have this right against which political entities?

    If this were correct, then it would gut the First Amendment as well as the Second. The clear answer is that ALL individuals have the right against ALL political entities. It is not a right without limits – it can be taken away with just cause. That’s why Scalia said that it doesn’t “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools… or laws imposing conditions and qualifications on the commercial sale of arms.” 

    • #2
    • April 2, 2018, at 12:32 PM PDT
    • 8 likes
  3. ctlaw Coolidge

    Richard Epstein: Yet in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

    I suggest you reread Miller. By its language, it only loosely tied the Second Amendment to the militia. In Miller, Justice McReynolds found that the Second Amendment protections extend to weapons that are “part of the ordinary military equipment or [whose] use could contribute to the common defense” as well as weapons that have “some reasonable relationship to the preservation or efficiency of a well regulated militia.Emphasis added. That is about as loose a tie to the militia (in favor of the citizen) as possible.

    IIRC, Miller was a defaulted appeal after the defendants won below. There was nobody persuasively arguing their case. In order for the government to prevail in a contested challenge under Miller, the government would have to prove that the weapon meets all three tests of:

    1. not be in the ordinary equipment…;
    2. not possibly be able to contribute to the common defense; and
    3. have no reasonable relationship to the preservation or efficiency…
    • #3
    • April 2, 2018, at 12:41 PM PDT
    • 4 likes
  4. ctlaw Coolidge

    Nick H (View Comment):

    Richard Epstein: Scalia’s error becomes clear in light of the following question: Which individuals have this right against which political entities?

    If this were correct, then it would gut the First Amendment as well as the Second. The clear answer is that ALL individuals have the right against ALL political entities. It is not a right without limits – it can be taken away with just cause. That’s why Scalia said that it doesn’t “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools… or laws imposing conditions and qualifications on the commercial sale of arms.”

    The first Amendment needed the incorporation doctrine. Recall that states had established religions at the founding. Thus, it made sense for the religion provisions to only apply to the Federal Government. The only odd part is that the non-religious aspects were not expressly made applicable to the states. I have not studied that.

    • #4
    • April 2, 2018, at 12:45 PM PDT
    • 2 likes
  5. drlorentz Member
    drlorentzJoined in the first year of Ricochet Ricochet Charter Member

    Justice Stevens simultaneously argues that Heller was wrongly decided and that the 2nd Amendment is outdated and needs to be repealed. This reminds me of the classic lawyer joke,

    Your Honor, I will show first, that my client never borrowed the Ming vase from the plaintiff; second, that he returned the vase in perfect condition; and third, that the crack was already present when he borrowed it.

    If the defect is a wrong decision, a future Supreme Court can overturn Heller: problem solved for Stevens. Only if the Court refuses to overturn the decision is it necessary to repeal the 2nd Amendment, in which case Stevens is wrong, i.e., his personal opinion is contradicted by a majority of his former colleagues and future justices.

    Slippery fellow, this Stevens.

    • #5
    • April 2, 2018, at 12:55 PM PDT
    • 8 likes
  6. Misthiocracy got drunk and Member
    Misthiocracy got drunk andJoined in the first year of Ricochet Ricochet Charter Member

    I have no problem with Justice Steven’s comments, because he’s the only one on the gun control side who is being honest. If you want to be a gun control advocate, be honest about it and DO THE WORK to get a constitutional amendment passed. Most of em just want to rely on legislatures to pass unconstitutional laws or the Supreme Court to invent new laws out of thin air.

    The US Constitution includes an amendment formula. Be honest, don’t be lazy, and use it. If you can’t do that, stop annoying the rest of us with your pointless virtue signalling.

    • #6
    • April 2, 2018, at 1:02 PM PDT
    • 9 likes
  7. I Walton Member

    I won’t argue with Epstein, he has one of the best minds around but I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias. That makes no sense to me. While the notion of god given rights is not explicit in the Constitution, that view of rights was central to everything they did to secure those rights. Moreover, due process then spread individual rights against the Federal government to individual rights against the. states.

    You legal scholars out there, did none of the founders write about this?. What are the best documented arguments against Epstein’s view.

    Most of the constitution is designed because of a particular view of human nature and politics, one most of us share, so is not changed by technology or development. The reality of arms has been altered drastically by technology so some things are common sense but not what the anti gun crowd calls common sense. Give me a break they have none.

    • #7
    • April 2, 2018, at 1:02 PM PDT
    • Like
  8. Hoyacon Member

    I Walton (View Comment):

    I won’t argue with Epstein, he has one of the best minds around but I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias.

    Prof. Epstein believes that Justice Scalia “excised the first half of the Second Amendment.” Let’s go to the record:

    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).

    And (fn 3)

    JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. Post, at 8. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

    Now there is considerable, further discussion of the two clauses that we don’t have space to quote, but does the above sound like the clause was “excised”? Treated as if it did not exist? More to the point, Justice Scalia recognized the potential for ambiguity, and advanced arguments based on the text of both clauses to resolve the issue.

    • #8
    • April 2, 2018, at 1:39 PM PDT
    • 4 likes
  9. SeanDMcG Thatcher

    I’ve come to think recently that a militia that knows that its fellow citizens are armed will be “well-regulated” from abusing its power. This may be far from what the framers meant when crafting the language of the amendment, but given the 6th amendment, the concept wouldn’t be that out of line. 

    • #9
    • April 2, 2018, at 2:10 PM PDT
    • 2 likes
  10. Bob Wainwright Member

    Hoyacon (View Comment):

    I Walton (View Comment):

    I won’t argue with Epstein, he has one of the best minds around but I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias.

    Prof. Epstein believes that Justice Scalia “excised the first half of the Second Amendment.” Let’s go to the record:

    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).

    And (fn 3)

    JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. Post, at 8. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

    Now there is considerable, further discussion of the two clauses that we don’t have space to quote, but does the above sound like the clause was “excised”? Treated as if it did not exist? More to the point, Justice Scalia recognized the potential for ambiguity, and advanced arguments based on the text of both clauses to resolve the issue.

    Is Epstein actually saying Scalia is wrong to think it’s an individual right? It seems unclear from what he wrote. Search the text of the constitution for “right of the people” and see if the other occurrences refer to an individual right. In each case, and others, the rights are spoken of grammatically as if they already exist. They are preexisting rights which are protected, not created, by their inclusion in the Constituion. So, “Due to the fact that a militia is important, we hereby give special mention to the people’s right to keep and bear arms (which already exists) and which will not be infringed.” Scalia’s reading is totally correct. 

    • #10
    • April 2, 2018, at 2:45 PM PDT
    • 1 like
  11. Hoyacon Member

    BTW, here is the article by Eugene Volokh cited by Justice Scalia regarding a context for clauses such as that which introduces the Second Amendment.

    • #11
    • April 2, 2018, at 2:47 PM PDT
    • 2 likes
  12. Ontheleftcoast Member

    Richard Epstein: Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army.

    I recall that Professor Epstein’s assertion is questionable; Nelson Lund of George Mason University’s law school is someone who questions it:

    “The Second Amendment is now among the most misunderstood provisions of the Constitution,” he said. “There are two schools of interpretation now: one that it’s about the right of individuals and the other that it’s about the right of a state to have a militia. Last year the U.S. Court of Appeals for the Fifth Circuit became the first court to adopt the correct view: it’s an individual right.” The operative phrase in the Amendment is “the right of the people to keep and bear arms shall not be infringed,” Lund said. The prefatory phrase about militias is “an ablative absolute clause giving context for the main clause,” and is illuminating in that function. “The Second Amendment does not say it protects the right of state militias to bear arms,” he noted.

    “No one thinks that when the First Amendment speaks about the right of the people to petition the government that it means only to protect the rights of lobbyists for state governments. It means individuals. What the Second Amendment is saying is you can’t disarm the people under the pretext of regulating the militia.”

    The founding fathers had a strong fear of standing armies in peacetime but also knew from the Revolutionary War that militias alone would not suffice to defend the nation, Lund said. A militia was formed by temporarily mobilizing citizens; an army, especially as they were known in Europe then, was typically made of career soldiers. An army was necessary for defending the country, the founders concluded.

    Meanwhile, anti-federalists had an abiding suspicion of ruling tyranny such as they saw in Europe, where citizens could not own guns, and therefore insisted that Americans not be disarmed. The Second Amendment’s purpose is to give citizens a way to defend themselves, not only from potential tyrants but also from threats (such as violent criminals) that the government leaves unchecked, Lund said. Part of the modern problem of interpretation comes from the fact that military weapons are now much more sophisticated than personal firearms.

    What we need is a good law professor cage match.

    • #12
    • April 2, 2018, at 2:48 PM PDT
    • 3 likes
  13. Unsk Member

    I am no legal scholar, but I believe what people now think of a state militia is quite different than from what was thought of in 1789. People had in that time to band together to form “militias” for their own protection. There was little or no standing army most of the time, nor much of a police force. Much of the population lived on the frontier, which was fraught with danger, so there was often no force to protect them other than themselves. It is another example of legal sophistry to believe as many so called legal scholars now do, that Americans in 1789 would have even thought there was an iota of a chance that the government could ban gun ownership. That absolutely was not going to happen. Guns were a necessity. Also, to give another historical context, one of the great causes that turned the political tide for revolution was that in a number of places, the British tried to actually take away peoples guns and their ammunition, which caused a horrendous outcry. It is inconceivable that the people of that time would allow the government just a few years later to take away their guns which was one of the reasons the American Revolution was fought for in the first place. In the context of that time, the 2nd amendment was absolutely intended to guarantee a right to bear arms, period. Fore clause notwithstanding.

    • #13
    • April 2, 2018, at 3:05 PM PDT
    • 3 likes
  14. Hypatia Inactive

    drlorentz (View Comment):

    Justice Stevens simultaneously argues that Heller was wrongly decided and that the 2nd Amendment is outdated and needs to be repealed. This reminds me of the classic lawyer joke,

    Your Honor, I will show first, that my client never borrowed the Ming vase from the plaintiff; second, that he returned the vase in perfect condition; and third, that the crack was already present when he borrowed it.

    If the defect is a wrong decision, a future Supreme Court can overturn Heller: problem solved for Stevens. Only if the Court refuses to overturn the decision is it necessary to repeal the 2nd Amendment, in which case Stevens is wrong, i.e., his personal opinion is contradicted by a majority of his former colleagues and future justices.

    Slippery fellow, this Stevens.

    Yes. The OP ignores the fact that Stevens wants to repeal the Second Amendment. He does not only want to raise the age of purchase ( inconsistent, since every male age 17 or more is in the unorganized militia) ban bump stocks, etc. he wants a sea change in America. Why? For the same reason the left wanted the Supreme Court to pronounce on marriage (which it had no suthority to do) : to remove

    any

    possible

    obstacles

    to gun confiscation.

     Molon labe.

     

    • #14
    • April 2, 2018, at 3:28 PM PDT
    • 4 likes
  15. LibertyDefender Member

    Bob Wainwright (View Comment):
    Is Epstein actually saying Scalia is wrong to think it’s an individual right?

    Yes, that’s what Professor Epstein is saying, that’s what he has been saying since Heller was handed down. He and Professor John Yoo discussed the Heller opinion (again) on a recent Law Talk podcast. I think Professor Yoo has the better take on the Second Amendment, i.e. that it protects the unalienable individual right of self-defense. I’ve not heard Professor Epstein discuss how his interpretation would affect the individual right of self-defense.

    • #15
    • April 2, 2018, at 3:37 PM PDT
    • 1 like
  16. Postmodern Hoplite Member

    Richard Epstein: in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

    I haven’t finished reading the entire OP as yet, but Epstein makes a factual error here: the National Guard, functioning as an auxiliary of the Regular Army and subject to its regulations regarding standardization of tactics and small arms, might have no identified need of weapons such as a sawed-off shotgun. This is the important distinction: The National Guard is not the militia. It receives 90%+ of its budget from Federal funding, serving as the principal source of manpower (either as individuals or as organized in units) from which the Regular Army draws Operational depth. The National Guard as it is currently constituted cannot function as the militia as the Founding Fathers envisioned it, because it does not exist independent of the Regular Army.

    Whether some, or all, of American people want – or have the character – to sustain the militia as it was originally envisioned by the Founders is the real question embedded within the discussion of whether or not to repeal the Second Amendment.

    Okay, back to reading the rest of the OP…

    • #16
    • April 2, 2018, at 4:34 PM PDT
    • 2 likes
  17. Skyler Coolidge

    Richard Epstein: Which individuals have this right against which political entities?

    Easy, Rick. The answer is “all individuals have this right against all political entities.” Why is that one hard?

    Richard Epstein: Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army.

    Wrong again, Professor. The militia is the people, whether organized or not.

    I suspect I won’t be able to stomach the rest of this. If a constitutional scholar can’t even understand these basics, it really makes me wonder why he has his job.

    • #17
    • April 2, 2018, at 5:14 PM PDT
    • 3 likes
  18. Bob Wainwright Member

    Postmodern Hoplite (View Comment):

    Richard Epstein: in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

    I haven’t finished reading the entire OP as yet, but Epstein makes a factual error here: the National Guard, functioning as an auxiliary of the Regular Army and subject to its regulations regarding standardization of tactics and small arms, might have no identified need of weapons such as a sawed-off shotgun. This is the important distinction: The National Guard is not the militia. It receives 90%+ of its budget from Federal funding, serving as the principal source of manpower (either as individuals or as organized in units) from which the Regular Army draws Operational depth. The National Guard as it is currently constituted cannot function as the militia as the Founding Fathers envisioned it, because it does not exist independent of the Regular Army.

    Whether some, or all, of American people want – or have the character – to sustain the militia as it was originally envisioned by the Founders is the real question embedded within the discussion of whether or not to repeal the Second Amendment.

    Okay, back to reading the rest of the OP…

    The Federal Code defines the unorganized or reserve militia as all able bodied men between 17 and 45 years old who are not in the National Guard.

    • #18
    • April 2, 2018, at 5:29 PM PDT
    • 2 likes
  19. Skyler Coolidge

    Bob Wainwright (View Comment):

    Postmodern Hoplite (View Comment):

    Richard Epstein: in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

    I haven’t finished reading the entire OP as yet, but Epstein makes a factual error here: the National Guard, functioning as an auxiliary of the Regular Army and subject to its regulations regarding standardization of tactics and small arms, might have no identified need of weapons such as a sawed-off shotgun. This is the important distinction: The National Guard is not the militia. It receives 90%+ of its budget from Federal funding, serving as the principal source of manpower (either as individuals or as organized in units) from which the Regular Army draws Operational depth. The National Guard as it is currently constituted cannot function as the militia as the Founding Fathers envisioned it, because it does not exist independent of the Regular Army.

    Whether some, or all, of American people want – or have the character – to sustain the militia as it was originally envisioned by the Founders is the real question embedded within the discussion of whether or not to repeal the Second Amendment.

    Okay, back to reading the rest of the OP…

    The Federal Code defines the unorganized or reserve militia as all able bodied men between 17 and 45 years old who are not in the National Guard.

    Yes. Prof. Epstein is fundamentally incompetent on the subject of firearms and firearms law. 

    • #19
    • April 2, 2018, at 5:52 PM PDT
    • Like
  20. Mark Camp Member

    I Walton (View Comment):
    I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias.

    I assumed that his argument is simply based on the text: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    The text gives a single reason for the prohibition. The most natural interpretation of the language is that is the ONLY reason for the prohibition. If it meant to give an unqualified right, then this reason would have been superfluous and would not have been specified.

    The text was basically saying that, if this right were infringed, then it would be difficult for members of the state militias to be well-trained/disciplined (the meaning of “well-regulated” in the language of the writers and approvers of the Constitution) with respect to firearms.

    Sorry, I don’t know the contemporary discussions. They would surely shed more light on it. I write just to say that to me the argument doesn’t seem at all strange. Scalia’s conclusion is the one that I don’t understand, and the article doesn’t give his explanation, unfortunately.

    • #20
    • April 2, 2018, at 6:00 PM PDT
    • 1 like
  21. Skyler Coolidge

    Mark Camp (View Comment):

    I Walton (View Comment):
    I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias.

    I assumed that his argument is simply based on the text: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    The text gives a single reason for the prohibition. The most natural interpretation of the language is that is the ONLY reason for the prohibition. If it meant to give an unqualified right, then this reason would have been superfluous and would not have been specified.

    The text was basically saying that, if this right were infringed, then it would be difficult for members of the state militias to be well-trained/disciplined (the meaning of “well-regulated” in the language of the writers and approvers of the Constitution) with respect to firearms.

    Sorry, I don’t know the contemporary discussions. They would surely shed more light on it. I write just to say that to me the argument doesn’t seem at all strange. Scalia’s conclusion is the one that I don’t understand, and the article doesn’t give his explanation, unfortunately.

    The idea of the militia was borrowed from the earliest recorded large democracies, the Greek city-states, who required all citizens (men) to maintain their panoply (greaves, shield, spear, sword, breast plate, helmet, etc.) and be ready to fight when required. All citizens in the United States were expected to maintain weapons and modern firearms and be ready to defend the Constitution from all enemies foreign and domestic. Their is no obligation to defend the government, only the Constitution and the people. This is the most fundamental error Richard makes.

    Richard Epstein: These steps will have only a small effect on mass killings, which are high-visibility, low-probability events. Indeed, at present, we have no idea of how many people were foiled or deterred by the precautions now in place, so most likely any form of gun regulation would only lead to incremental improvement. Sadly, in a nation with over 325 million people, occasionally some deranged person will slip through the net no matter what legal safeguards are in place.

    And here, in the end, Richard obliviously undermines his own argument. The solution he proposes can’t be measured and we know it can’t work, but he wants to do it anyway. Bah.

    • #21
    • April 2, 2018, at 6:38 PM PDT
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  22. J. D. Fitzpatrick Member
    J. D. FitzpatrickJoined in the first year of Ricochet Ricochet Charter Member

    More specifically, the phrase “security of a free state” has to mean one of the free states of the United States

    Can anyone provide more context for this claim?

    The word state had a long history of referring to a polity; see Othello’s “beaten a Venetian and traduced the state.” The OED has citations from the 16th and 17th centuries. 

    In addition, the founding fathers could easily have said “the security of the free states” (or even “these free states,” on the model of “these United colonies are … free and independent states” as in the Dec of Ind) in order to make the meaning of state more precise.

    OTOH, it does seem strange for the founding fathers to think that France, England, and other European states could be free only if they had well-regulated militias. Still, perhaps they had some other historical state in mind (Switzerland?) that they were using as a model for this idea of a militia’s being necessary. 

     

    • #22
    • April 2, 2018, at 7:03 PM PDT
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  23. Skyler Coolidge

    J. D. Fitzpatrick (View Comment):

     

    OTOH, it does seem strange for the founding fathers to think that France, England, and other European states could be free only if they had well-regulated militias. Still, perhaps they had some other historical state in mind (Switzerland?) that they were using as a model for this idea of a militia’s being necessary.

    I don’t think that is so strange at all. Remember that they, at least most of them, believed that free people were possible only when governed by consent of the people. They believed that a people had a right to overthrow an oppressive government, and they certainly believed that most, if not all, of Europe was corrupt and oppressive. Jefferson got in a lot of hot water for colluding with revolutionaries while he was ambassador to France.

    But the historical model the founders had in mind when they thought of militias was Greece.

    • #23
    • April 2, 2018, at 7:24 PM PDT
    • 1 like
  24. Hoyacon Member

    Mark Camp (View Comment):

    I Walton (View Comment):
    I do not understand his argument that the 2nd Amendment pertains to people who are members of state militias.

    I assumed that his argument is simply based on the text: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    The text gives a single reason for the prohibition. The most natural interpretation of the language is that is the ONLY reason for the prohibition. If it meant to give an unqualified right, then this reason would have been superfluous and would not have been specified.

    The text was basically saying that, if this right were infringed, then it would be difficult for members of the state militias to be well-trained/disciplined (the meaning of “well-regulated” in the language of the writers and approvers of the Constitution) with respect to firearms.

    Sorry, I don’t know the contemporary discussions. They would surely shed more light on it. I write just to say that to me the argument doesn’t seem at all strange. Scalia’s conclusion is the one that I don’t understand, and the article doesn’t give his explanation, unfortunately.

    I don’t mean this to be confrontational, but did you read the quotes from Scalia’s opinion that I posted above? As well as the Volokh law review article that puts the “well-regulated militia” phrase in context?

     

     

    • #24
    • April 2, 2018, at 8:32 PM PDT
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  25. MarciN Member
    • #25
    • April 2, 2018, at 11:50 PM PDT
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  26. J. D. Fitzpatrick Member
    J. D. FitzpatrickJoined in the first year of Ricochet Ricochet Charter Member

    Yeah, I like Volokh’s observation: the initial absolute phrase might serve the rhetorical purpose of explaining the right to an 18th-century audience. Nowadays, even though the need for militias has decreased, we could simply appeal to the general principle: the people need, in principle, to be organize their own defense groups, independent of the army and state police, in order for us to have a free state. 

    Or that’s my take, at least. 

    • #26
    • April 3, 2018, at 1:58 AM PDT
    • 1 like
  27. Skyler Coolidge

    J. D. Fitzpatrick (View Comment):

    . Nowadays, even though the need for militias has decreased.

    What brings you to that conclusion? I look at Ruby Ridge, Waco, Black Panthers at voter polls, politicization of the IRS and the FBI as evidence of increased need.

    That we still have any vestige of trust in our government has a lot to do with the fact that we are armed.

    • #27
    • April 3, 2018, at 2:08 AM PDT
    • 1 like
  28. J. D. Fitzpatrick Member
    J. D. FitzpatrickJoined in the first year of Ricochet Ricochet Charter Member

    I don’t think Richard’s interpretation of the meaning of “state” is right. It’s true that the Constitution uses the word state to refer to the independent states, but that’s what you’d expect in a document that is designed to lay out the relationship between a federal govt and the states within it. 

    Here’s are two quotes from Thomas Jefferson:

    “Though forbidden by my character, to meddle in the internal affairs of an allied State [i.e., France], it is the wish of my heart that their troubles may have such an issue, as will secure the greatest degree of happiness to the body of the people.”

    To General Washington, 1788: “The present system of war renders it necessary to make exertions far beyond the annual resources of the State, and to consume in one year the efforts of many.” I’m pretty sure that State means the nation here. 

    True, these are the only uses of state in this sense, but they show that 18th-century American writers had not forgotten this meaning, despite the peculiar usage that developed in their own country. 

    For me, this misinterpretation of a key word in the Amendment calls into question the interpretation of the whole. 

     

     

     

    • #28
    • April 3, 2018, at 2:19 AM PDT
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  29. Skyler Coolidge

    J. D. Fitzpatrick (View Comment):.
    True, these are the only uses of state in this sense, but they show that 18th-century American writers had not forgotten this meaning, despite the peculiar usage that developed in their own country.

    There is nothing peculiar about it. The United States were individual states who voluntarily united, somewhat the same as the EU. The word could and did refer to both individual sovereign states, or to the union of those states. It wasn’t until 1865 that the sovereignty of the individual states was erased.

     

    • #29
    • April 3, 2018, at 3:35 AM PDT
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  30. Stad Thatcher

    Richard Epstein: Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army.

    But isn’t it true that the militia is not necessarily a standing organization, that it can be (and was thought of as) the individual citizens of a state forming the state-based entity known as a militia?

    • #30
    • April 3, 2018, at 6:23 AM PDT
    • 1 like

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