In Defense of Bad Faith Second Amendment Arguments

by publius

Via McCardle, I saw this uncharacteristically weak argument from Jonathan Turley:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right.

To which McCardle responds:

I've always had a hard time believing that people who thought the right of "the people" was a collective right could be arguing in good faith--at least, not if they'd read the rest of the constitution. After all, no one would take seriously an argument that the right of "the people" in the fourth amendment "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was a collective right that could only be enjoyed if you joined the National Guard.

These are tough questions. Lots of smart people argue different things. But the idea that arguing for a collective right is in bad faith is absurd. I happen to believe it’s the best argument -- and I’ve even read the rest of the Constitution.

First, contrary to popular belief, the Bill of Rights weren’t necessarily libertarian protections for individuals and minorities. Akhil Amar, for instance, has argued that the Bill of Rights should be understood as structural, federalist (i.e., states-rights) protections for majorities. The animating fear was a distant, remote federal government that would tyrannize state governments (remember then-recent history). For instance, the establishment clause makes no sense as anything other than a protection of state-recognized churches (or against federally-established churches like the Church of England) -- it is not a libertarian provision. Even the criminal protection provisions can arguably be seen -- not merely as individual protections -- but as structural protections against federal officials who impose arbitrary or tyrannical rule.

Of course, when you read over the Bill of Rights, it’s easy to read them as libertarian provisions. But Amar in particular has offered various textual and historical reasons why they shouldn’t be (or shouldn’t exclusively be) read that way. I’ll rattle those off below the fold.

First, remember that the Bill of Rights applied only to federal action until after the Civil War. The Bill of Rights (most of them anyway) apply to states today because the post-Civil War 14th Amendment “incorporates” them, so sayeth The Nine. (The 14th Amendment applies expressly to states).

Second, consider the amendments that Madison originally proposed, but were voted off the island. The current First Amendment was actually the Third Amendment – the first two were more structural, addressing the size of a state’s House representation and altering congressional salaries. Most tellingly, Madison proposed an amendment prohibiting state violations of free speech, etc. that got shot down.

Third, Amar argues that the term “the people” may have had a more specific meaning. Back in the day, law distinguished so-called “political” rights from “civil” rights. Citizens had both, but non-citizens only had the latter. For instance, only citizens could vote while non-citizens could, say, own property. Thus, “the people” (referred to in the First, Second, and Fourth Amendments) likely meant voting citizens. Interestingly, when you get to the criminal protections, the Bill of Rights suddenly switches to “person” or the “accused.” Here’s the Fifth:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…

Why not use “the people” there? Why make the switch? The answer is that the terms were likely understood in different ways.

If you think the Framers consciously used different phrases for different reasons, the phrase “the people” -- combined with the use of military terms like “militia” and “bear arms” -- strengthens the collective-right interpretation. Under this reading, Congress couldn’t ban gun ownership on an individual level. But, a state could do what it wanted to. If it wanted to ban guns, fine. If it didn’t, fine. The point was to protect the ability of states (and thus groups of state citizens) to create militias if they wanted to.

That said, there are good arguments on the other side. For instance, you can argue that the 14th Amendment made the Second Amendment (like all the Bill of Rights) individual-focused rather than state-focused. Thus, even if the original Second Amendment was collective, the "new" one might be individualist. Plus, I’m sure there are historians that disagree with Amar’s textual reading (though he generally gets props from historians).

But the larger point is that these questions are -- at minimum -- very close calls without determinate answers. And because the Second Amendment can plausibly be read in different ways, maybe it’s better to let the political branches decide this specific question. But regardless, the idea that a collective-right reading is unprincipled or in bad faith is simply wrong.

Comments

[Sebastian Holsclaw]

"Amar argues that the term “the people” may have had a more specific meaning. Back in the day, law distinguished so-called “political” rights from “civil” rights. Citizens had both, but non-citizens only had the latter. For instance, only citizens could vote while non-citizens could, say, own property. Thus, “the people” (referred to in the First, Second, and Fourth Amendments) likely meant voting citizens."

This is true, but the way you next try to use it doesn't fit.

"Why not use “the people” there? Why make the switch? The answer is that the terms were likely understood in different ways."

Sure, but again this doesn't lead to the collective right interpretation you are trying to defend. This leads to the interpretation that the 2nd amendment only counted for "voting people".

"If you think the Framers consciously used different phrases for different reasons, the phrase “the people” -- combined with the use of military terms like “militia” and “bear arms” -- strengthens the collective-right interpretation."

Not particularly. If you are arguing the political vs. civil rights interpretations you are still talking about rights held by individuals you are just noting that only citizens count. And notice also that if you are going to take that interpretation you are going to hit the 1st amendment right to assemble...

Combining it with militia doesn't help you at all, because the militia was just every able bodied man.

"And because the Second Amendment can plausibly be read in different ways, maybe it’s better to let the political branches decide this specific question. But regardless, the idea that a collective-right reading is unprincipled or in bad faith is simply wrong."

It is just a really bad historical reading which to my knowledge has no basis in actual history. Which is to say that as actually applied beginning with the ratification of the amendment and judicial history for the next 200 years, I've seen no reason to believe that it was not considered an individual right.

[liberal japonicus]

I think McArdle's immediate leap to assumptions of bad faith tells us a lot more about her than about the Constitution.

[Doctor Science]

I blame it all on the commas:

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.

I've never been able to parse that. No *wonder* people disagree.

More seriously: I don't think "2nd Amendment means arms are an individual right" is a bad-faith argument. I just think it's a poor reading, that the individual-rightists are pulling out what they want to see and not reading what's *there*.

In the same sentence, the 2nd Amendment refers to "a well regulated militia" and "the right ... shall not be infringed". How do we get a right which is both un-infringable and well-regulated? I don't see how a strictly individual right can be both, so it must be a group or collective right.

[KipEsquire]

Others have noted that the collective rights theory of the Second Amendment also requires a presumption that -- for that text and that text alone -- its authors were atrocious writers.

All they needed to have said was "Congress shall pass no law infringing state militias."

Amir's theory of interpretation, meanwhile, is gobbledygook. How can the Third, Fourth, Fifth, Sixth or Eighth Amendments, for example, be considered protections of states rather than of individuals? Not to mention the Ninth.

[rea]

The colletive nature of the right does not derive from the word "people," but instead comes from the part about the "well-regulated militia," the explicit power in Art. I Sec. 8 to regulate the arming of militia, and the structure of state/federal relations.

The power to regulate and the prohibition on infringment are reconciled by allowing regulation of individuals with respect to weapons, but not the general disarmament of the population.

Note also that the 2nd Amendment, like the rest of the Bill of rRights, is a limitation on federal, not state power. Without recapitulating the history of incorporationism, let me just point out that we often speak of "First Amendment" rights, or "Fourth Amendment" rights, when what we really mean are rights protected by the 14th Amendment.

[jpe]

What Doctor Science says. No other amendment has a p > q structure. Unless the writers had to meet some page minimum, the logical structure suggests that the right turns on the subjunctive predicate. (and if they had to meet the minimum, they could've just switched their font to Courier New)

[Brett Bellmore]

"In the same sentence, the 2nd Amendment refers to "a well regulated militia" and "the right ... shall not be infringed". How do we get a right which is both un-infringable and well-regulated?"

We don't, Doc; Read the amendment again, it's the militia that's well regulated, not the right. Having a well regulated militia in no way implies regulating what personal arms the people comprising it are allowed to own. It could very well involve, (See the early militia acts!) mandating that they DO own certain arms, but how does that imply the opposite goal of gun control, that they not be permitted to (in addition!) own arms the government doesn't like?

Sebastian gets at the critical point: In a vacuum, were you so inclined, you could torture the 2nd amendment enough to extract a 'collective' right no particular person could exercise. But any examination of the history of the amendment would instantly indicate that you'd gotten it wrong. In fact, the 'collective right' interpretation is a creation of 20th century gun controllers attempting to rationalize that they weren't trying to violate the 2nd amendment. And not doing a very good job of it.

Nobody has managed to unearth evidence that anybody had even considered a 'collective' interpretation of the amendment in the founding era.

You'll notice that individual rights advocates keep trying to get people to read founding era documents. Advocates on the other side? They've got Bellesiles...

So, I'd say that while it is possible for a relatively ignorant person to advance the collective interpretation in good faith, it is not possible for anyone who has exerted the slightest effort to become informed on the subject. The evidence is just too overwhelmingly one-sided.

[Incertus (Brian)]

Just out of curiosity--why does the history matter today? The Framers don't live in this society--why should we be so worried about what the words they chose meant then? We don't live in that world--we live in this one. Worry about what those words mean now, as interpreted through the lens of 21st century definitions of who people are and what rights they have. I mean, I'm a white guy, and I wouldn't want to live under the 18th century definition of who a person is. It's safe to say that most women and minorities don't want to.

[Doctor Science]

Brett, it still doesn't make grammatical sense to me.

"A well regulated militia" means that the actions of the people comprising the militia are regulated, correct? And regulation by its very nature means that actions are controlled or constrained, which means that the abilities (rights) of the people involved to be perfectly free in their actions are "infringed".

Basically, what's the phrase about the militia doing in there in your reading, if it doesn't have anything to do with the rights in the second part of the sentence? How can the individuals who make up the militia have uninfringed rights if they are well-regulated?

I haven't delved hard into the issue by your standards, because I live in NJ, where gun control is an obvious necessity to all (stray bullets have a way of hitting people). I grew up in CT, so the concept of "freedom" David Hackett Fischer outlines in the New England section of Albion's Seed (Mrs. Robinson discussed it in Orcinus a couple weeks ago) makes intuitive sense to me. For the Puritans and their cultural descendents (including both John Adams and John Kerry), "freedom" is the ability of a community to order itself, to collectively choose the terms of its restraint.

[Anderson]

Bad news, people: you can read the Second Amendment either way. That would be why there's a debate on what it means.

Personally, I think the best compromise reading is to concede an individual right, but also to concede that the "well-regulated" language means that the exercise of that right is subject to regulation.

But I wouldn't dream of arguing that the language of the Amendment *dictates* my reading.

As for McArdle, she's consistently either stupid or dishonest. I have deep, deep contempt for the kind of "intelligent" person who glances at the Constitutional text and says, "well, I can read, so here's what that means."

[cleek]

Basically, what's the phrase about the militia doing in there in your reading, if it doesn't have anything to do with the rights in the second part of the sentence?

oh it's just an example of one of the many wonderful things people will be able to enjoy, when they're allowed to own as many guns as they like. they could've just as easily written:

A thrillingly-violent police drama, being necessary to the entertainment of a happy state, the right of the people to keep and bear arms, shall not be infringed.

[my 2 cents]

I'm no constitutional scholar, but it seems to me (as I learned many years ago as a law student - especially the not being a consttutional scholar part) that historical context can not be ignored in Constitutional interpretation.

At the time of the Framers, there was no actual organized federal armed force that could be invoked on short notice. Civil defense was on an ad hoc local basis. In order for that to effectively occur, people could keep and bear arms JUST IN CASE THERE WAS A COLLECTIVE NEED FOR THOSE INDIVIDUALS TO BE CALLED TO ARMS IN THE EVENT A MILITIA WAS NEEDED FOR COLLECTIVE DEFENSE.

I don't see how this right, within the original language(no matter how awkwardly worded), extends to the personal right to maintain weapons for any individual purpose. The grant is an individual right for collective purpose.

Sure, the states can bestow statutory rights on citizens to own weapons for individual purposes WITHOUT CONFLICT with the Constitution, but the Constitution's language on its face reads only to grant a very limited individual right, circumscribed and conditioned upon the need for defense of the collective citizenry within a historical context characterized by a real possibility that a militia might be needed on the spur of the moment.

[Steve]

Is the individual rights side arguing that even prior to the 14th Amendment, the 2nd Amendment was understood to prevent States from restricting gun ownership?

[Doctor Science]

ah cleek, I see. So, for instance:

A portable symbol of potency, being necessary to the security of a unstable masculine identity, the right of the people to keep and bear arms, shall not be infringed.

[Katherine]

I don't buy the "persons"/"the people" distinction at all. They thought women could be jailed for peacably assembling, & had no right to be secure in their persons from unreasonable search and seizure? Really?

I don't think either the individual or collective right reading is really accurate. The NRA view reduces "A well regulated Militia being necessary to the security of a free State" to meaninglessness; but the militia they were envisioning involved the participation of a large % of voting citizens who would own their own guns--the existence of a state police force is not really a substitute as far as "the people" bearing arms.

The Second Amendment is a relic. It's as archaic, in its way, as the third. It is written assuming the existence of a militia that doesn't exist, & as an actual protection of liberty it's been rendered completely obsolete by changing weapons technology. The idea that it compares to the First, Fifth, Sixth, or Fourteenth, among others, as far as actual protection of individual liberty from gov't encroachment, I find comical. Check out gun ownership rates in Western Europe v. pre-war Afghanistan & Iraq and get back to me.

As a policy matter, I don't favor banning say, hunting rifles, for the same reason I don't favor banning golf: the gov't shouldn't interfere in people's recreational activities without a real reason to do so, & I don't think there's a strong enough link between hunting rifles & crime rates to justify that. As a political matter, the sorts of gun control that might have an effect on violent crime are politically impossible, & the stopgap measures just seem to piss everyone off without actually accompishing much. As a constitutional matter, though, I do tend to want to err on the side of construing the bill of rights as broad, strong, protections of individual liberty. And it seems inconsistent to leave the Second Amendment out of that even though I think it was actually a mistake to write it in the first place. (I am quite comfortable with certain specific restrictions on say, AK-47s & Kalashnikovs & cop killer bullets based on the phrase "well regulated").

[togolosh]

Much of this discussion assumes that the 2nd Amendment has a clear and well defined meaning that was agreed upon by the founders. I suspect that an interview with various members of the constitutional convention at the time of ratification would have produced wildly varying accounts of what they had just ratified. Politics is always about compromise, and one of the ways compromise is achieved is by careful wording that defers conflict or moves it into another arena. The clumsy wording of the 2nd amendment seems to me exactly the kind of sausage factory product that comes out of a process of political maneuvering to generate something acceptable by the largest number of people.

On another note - Katherine: you are assuming gun rights have to do with hunting, crime, and that sort of thing. I couldn't disagree more. Gun rights are necessary to ensure that the government cannot pull the kind of thing that's being done in Burma right now. If the people can shoot back it's much harder to oppress them.

[CVSG]

Has the 2d Amendment been expressly incorporated?

[Nate]

I'm not certain if I've seen Sebastian arguing for the "strict constructionist" point on Constitutional interpretation before, but I know a number of the people who publicly argue for the widest individual interpretation of the second amendment have. So doesn't the idea of looking at the history of how the second amendment has been applied and enforced conflict with the idea of their claim to "just read the text, without interpretation"?

[rea]

Having a well regulated militia in no way implies regulating what personal arms the people comprising it are allowed to own.

Brett Bellmore, you seem to be something of a Second Amendment absolutist. I've always wanted to ask one of you guys this: If the FBI finds a terrorist with a nuke in a suitcase, does the Second Amendment, in your view require them to let him go? If not, why?

[Katherine]

"If the people can shoot back it's much harder to oppress them."

No, not really. Not long term. See: Iraq. See: Afghanistan. I'm not talking about the current wars--I'm talking about the incredibly high gun ownership rates under Hussein & the Taliban, which didn't seem to interfere much with gov't oppression. In the U.S. of course the gov't has even more technology.

[Doctor Science]

If the people can shoot back it's much harder to oppress them

Do you have evidence for this? For instance, do you think people in high gun-ownership states are less oppressed than people in low gun-ownership states?

I think the state-level evidence might reasonably support the idea that it's harder for the government to oppress gun owners, but much easier for them to oppress each other -- e.g. by homicide and other forms of street-level violence.

[skeptonomist]

"For instance, the establishment clause makes no sense as anything other than a protection of state-recognized churches..."

The guarantees of freedom of speech, of the press, assembly and petition are all in the same sentence with the establishment clause - this sentence begins with "Congress shall make no laws respecting...".

The interpretation that the first amendment only prohibits the *federal government* from doing certain things is certainly a possible one, but it must apply across the board to all these freedoms, not just to the establishment clause. That is, according to this interpretation, states would be free to establish a church, *and also* to abridge the freedom of speech, press, etc. Or again, that these freedoms are not guaranteed by the constitution against abridgment by state or local governments.

This is absolutely not the interpretation which is currently accepted, whatever the founding fathers had in mind.

[Katherine]

skeptonomist--I think the current view is, those rights apply against the states, but they didn't until the 14th amendment passed.

[Doctor Science]

I'll also add that it's much easier for governments to oppress fearful people -- for instance, the kind of people who buy guns to protect themselves from the people around them.

[John Thullen]

Bouncing off of James Carville, who once wished he was the bond market, I wish I was Blackwater, an unregulated international militia.

I would hold suspicious meetings and we'd get together and train like schoolboys in the woods and I'd issue news releases with sinister sounding language about how things are going to be one day, and then I'd wait until the second amendment purists, like the NRA and their shills governing the country, became a little nervous and began parsing the language of the amendment in a less literal fashion and then I'd kick it up another notch, just to see where constitutional rhetoric ends and traumatized sphincters begin.

I'd spell "government" as "gummint".

I'd use another country as a proving ground, where I could spray gunfire at civilians at will to test the elasticity of the word "regulated".

Then, like the 15% flat tax dictated to my proving ground, I'd point to my own country, and ask "Why can't we have these highly successful policies in our homeland?"

Does Ted Nugent play golf? If I were Blackwater I would use my expansive powers to ban golf, just to see how long it took Nugent to brandish a three-iron on stage and threaten me with playing through.

[skeptonomist]

It is a mistake to think that the "Constitution" is a single document which must be interpreted in light of the exact intentions of the writers. In fact it has been constantly reinterpreted, by Congress and public opinion as well as the courts. A few parts are simply obsolete, such as the phrase "A well regulated militia, being necessary to the security of a free state...", which is not true anymore, whatever "free state" means.

The British often talk about a constitution (or used to), but they have no single written document.

[Doctor Science]

ust to see how long it took Nugent to brandish a three-iron on stage and threaten me with playing through

Oh, I think his masculinity would pretty much require using a wood.

[skeptonomist]

It may be true that the 14th amendment helped to form the current view of the 1st, but it says nothing specifically in clarification or amendment of the 1st - there is no reference to establishment or freedom of religion or to the other freedoms. The first paragraph of the 14th is about possible conflicts of state with federal laws.

People who take the restrictive interpretation of the 1st amendment are almost always arguing against federal government enforcement of separation of church and state and rarely acknowledge the implications for the other freedoms.

[publius]

katherine - re "people"/"person", one source of confusion is that the 4th wasn't really designed as a criminal protection. according to bill stuntz anyway ("substantive origins of the 4th" - 1995 yale lj), the 4th was rooted in privacy, particularly privacy from heresy and libel and political oppression.

if he's right, it makes more sense that this type of right would apply to citizens.

all that said, i don't necessarily care what the original understandings were. i prefer to interpret constitutional text where possible with an eye to pragmatism and policy. but that's the argument

[Katherine]

Ah, Bill "against privacy & transparency" Stuntz. I'm not a fan.

When you say citizens, who precisely do you mean? The voting polity was not synonymous with citizens, as you know. Are you seriously suggesting to me that based on the fact that women can't vote, it'd be okay for the police to search their persons without a warrant?

I still find it just facially implausible. I think the difference is that when they're talking about affirmatively "having the right to X" about a right they say "people", & when they are saying "the government shall not do this to" they say "person." "The right of persons peacably to assemble" sounds a little awkward, as you assemble together. "The people shall not be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury" sounds extremely awkward, as you indict one person & not "the people."

[Steve]

I wish someone would answer my 9:30 question, I'm honestly confused about this.

[Katherine]

Steve: I assume they are not arguing that, but I can't be certain.

[Brett Bellmore]

There's really no legitimate question regarding incorporation; If you read the Congressional debates concerning the 14th amendment, they were unambiguous about it: The amendment was supposed to incorporate the Bill of Rights, amendments 1-8, against the states, via the privileges and immunities clause. The only reason it didn't happen that way was that the Supreme court of the time set out to deliberately render the amendment moot by 'interpreting' it so that it would have no practical effect. This is not contraversial history, it was at one time the stuff of high school civics and history classes.

Rea, "arms" is a term with a particular meaning in this context: It's the weaponry typically carried by a soldier. Until Congress decides that every grunt is going to be issued a suitcase nuke on completing basic training, suitcase nukes won't be "arms" in this context. Until Congress decides to issue them super-soakers instead of assault rifles, assault rifles will be "arms". Congress decides what "arms" are by deciding what it's soldiers will be armed with.

Read what that generation had to say about the amendment: http://www.gmu.edu/departments/economics/wew/quotes/arms.html

The purpose of the amendment, so far as I can see from reading contemporary writings, was to assure that a militia could be raised in an emergency, even if, (As did eventually happen.) the government had decided it didn't WANT to maintain a militia system. It does this by guaranteeing the right of citizens to own and practice with militiary weapons, thus assuring a body of people suitably armed and familiar with the use of those arms.

To that end, the people are guaranteed the right to arm themselves in the same manner as soldiers.

Who don't carry nukes in there backpacks...

[Bill]

“But regardless, the idea that a collective-right reading is unprincipled or in bad faith is simply wrong.”

The idea of a collective-right reading is the thing that is wrong. Our right to bear arms is founded on the concept of the Citizenry being able to defend itself against a corrupt government. Americans are only able to choose their own officers and government if they are empowered as individuals, not as a collective. Those at the top know that there are 270 million firearms in the hands of American civilians, and there is nothing that can be done about it at this point in world history. They’ve tried to stop ammunition sales with OSHA regulations, and failed. Ammunition taxes are next.

If an American father wants to buy a hundred 9mm rounds in Maryland to protect his family, the bullets will cost him ~$15. The tax $500. John Thullen is wrong too, the meetings are not held in the woods, they are held in a small clearing.

"The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."
-From Federalist 46, attributed to James Madison

http://www.yale.edu/lawweb/avalon/federal/fed46.htm

[Katherine]

I assume by "a soldier" you mean "an infantryman"? Or is artillery in too? Grenades?

I basically agree with you about the original purpose. I also basically agree that the fact that the purpose has become somewhat obsolete doesn't necessarily limit the text. To say that the original, obsolete purpose requires that we have the right to bear machine guns--a technology that didn't exist then & which police, who are arguably as good an analog for militia as the U.S. army, don't generally carry--seems like a stretch. I mean, WHICH soldier's weapons? It's not like you need to go all the way to nukes to get a crazy result. Cluster bomb artillery?

[Katherine]

"limit the text" should be "erase the text".

[cleek]

To that end...

since the military is perfectly capable of teaching people to fire an M-16, just as its capable of teaching people how to launch SAMs and pilot submarines, we no longer need a citizenry armed for that purpose.

any circumstance dire enough to require an immediate draft of all citizens, which is also urgent enough to preclude any kind of weapons training, is likely going to be met with a massive wave of nuclear-tipped ICBMs in the direction of the offending country. within an hour of landing on US soil, the invaders will have no home country to report back to.

[Steve]

It does this by guaranteeing the right of citizens to own and practice with militiary weapons, thus assuring a body of people suitably armed and familiar with the use of those arms.

Guaranteeing it against WHOM?

In the year 1820, if the State of Maryland had decided to restrict private gun ownership, do you believe the federal government would have interceded to stop them?

Or do you believe the individual right to be free of state restrictions on gun ownership only came about as a result of the 14th Amendment?

[Bill]

“The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.”
-James Madison. January 29th, 1788

2.7 million in uniform.
300 million population

Our Founding Fathers were brilliant.

[publius]

yeah, i'm not a big stuntz fan either, but he didn't used to be such a wanker.

as for the women/citizens thing, you're right that it doesn't make sense. but, if you think of the 4th as a political privacy provision, then (in those times) it probably wouldn't have occurred to them that they needed to protect non-voting citizens.

of course, i understand that history has shown that women played a far more prominent role in the revolution, etc. than people realize. so i guess i'm not sure -- i think it's possible they just weren't thinking in these terms.

but yes, post-2001 stuntz sucks. badly

[Brett Bellmore]

Cleek, disagreeing with the wisdom of the 2nd amendment's policy implications is all well and good, but it doesn't after all repeal the amendment.

In fact, I would go so far as to say there's no point in having a bill of rights, if the mere fact that the government thinks an amendment is obsolete/a bad idea relieves the government of the obligation to comply with it. The government always claims that everything it wants to do is a good idea, after all.

IOW, you don't like the 2nd amendment? Repeal it.

[Brett Bellmore]

"Or do you believe the individual right to be free of state restrictions on gun ownership only came about as a result of the 14th Amendment?"

Bingo! In fact, as you can easily verify by checking out the Congressional Record of the 14th amendment debates, a key purpose of the 14th amendment was to stop southern states from disarming freed slaves.

[skeptonomist]

Regarding the 14th, I have a hard time seeing how it has much bearing on the interpretation of the 2nd - the 1st paragraph is mainly to make sure that blacks have the same rights etc. as others, whatever those rights are (although this was later subverted by legislation and Supreme Court decisions such as Plessy v. Ferguson).

On the other hand, the Civil War itself had a great deal of bearing on many constitutional questions - states no longer feel they have the right to secede from the union or to use their militias to invade other states or other contries, not because of anything in the written constitution but because they know that the Federal Government will PUT THEM DOWN BY FORCE if they try. State militias as they were before and just after the war of independence just don't exist anymore - the National Guards are under the authority of the President, and do not require in any way that their members provide their own weapons.

[washerdreyer]

First, remember that the Bill of Rights applied only to federal action until after the Civil War.

This is a widely accepted proposition, but to be strictly accurate, Federal courts didn't apply the Bill of Rights to the several states until after the passage of the Civil War amendments and state courts only did so as a matter of choice. The linked version of the article looks to be a newer version than the one I read, but the abstract is the same.

[Molly McRae]

I love it when you educate me.

[cleek]

italexio!

[hf]

Assuming suitcase nukes can exist -- I've seen conflicting reports on this point -- carrying one seems like pretty conclusive evidence of conspiracy to commit murder/terrorism. Certainly the accused might claim they wanted it for recreational hunting if we lacked a specific law forbidding it, but no jury in the world would believe them.

[cleek]

In fact, I would go so far as to say there's no point in having a bill of rights, if the mere fact that the government thinks an amendment is obsolete/a bad idea relieves the government of the obligation to comply with it.

governments ignore anachronistic/obsolete laws all the time. ex. did you know blasphemy is illegal in MA ?

the fact that some enjoy what people have come to assume that this law allows doesn't mean the law isn't obsolete.

IOW, you don't like the 2nd amendment? Repeal it.

sadly, i don't actually have the power to do that. and, honestly, i'm not sure i want to ban guns. but, nevertheless, i don't think the 2nd Amendment gives them to us, and if it were in my power to repeal A2, i'd replace it with something a little less stupid.

[Erasmussimo]

I'd like to offer a more general comment: the Second Amendment is clearly the single most out-of-date element of our Constitution (well, except for the 3/5 rule). It cries out for a new Constitutional amendment. But there's no chance of such an amendment happening anytime in the foreseeable future. The same thing goes for abortion -- the legal foundations for which are just too damn tenuous. We as a polity should be discussing possible amendments, but instead we spend all our time arguing ridiculously fine points of the old laws. I think this is an indication of serious political arteriosclerosis -- we spend our energy looking backward to the past rather than forward to the future. The attitude of "let's roll up our sleeves and work out a compromise solution" seems to have left our souls. And that spells the doom of our Republic.

[Brett Bellmore]

"governments ignore anachronistic/obsolete laws all the time."

There's a huge difference of kind between a state refraining from enforcing an obsolete law, and a state refusing to comply with an 'obsolete' constitutional right. In the one case, it's just prosecutorial discretion, in the other an outright violation of the highest law of the land.

[Dantheman]

Erasmussimo,

"the Second Amendment is clearly the single most out-of-date element of our Constitution (well, except for the 3/5 rule)"

No, the Third Amendment is. When was the last time there was a dispute about quartering soldies in private residences?

"I think this is an indication of serious political arteriosclerosis -- we spend our energy looking backward to the past rather than forward to the future. The attitude of "let's roll up our sleeves and work out a compromise solution" seems to have left our souls."

I'll agree there is a current serious hardening of the political arteries. But that is a function of where we are in the Generational Cycle (see here for the writers' explanation of Generational Theory). With the country either just entering or in the very early stages of a Crisis, a lot of long-standing problems will be decided by which party successfully leads us through the Crisis, just as the economic issues raised by the Progressives were resolved by FDR, and the slavery/states rights issues of the 1830's through 1850's were resolved by Lincoln.

[Dantheman]

whoops -- "soldies" should be "soldiers".

[cleek]

In the one case, it's just prosecutorial discretion, in the other an outright violation of the highest law of the land.

if we agree that the 'citizen soldier' rationale as a basis of A2 is anachronistic, it's just "prosecutorial discretion" (a.k.a. an interpretation of the law that agrees with gun-lovers, and not with the original spirit of the law) that's keeping A2 alive.

yes, in my MA example, people are choosing to ignore an anachronistic law, and that is different from choosing to interpret an anachronistic law in a way that favors modern society. i'm just, clumsily, pointing out that our interpretation of laws does change over time. the fact that you like the current misinterpretation of the anachronistic A2 doesn't mean it's not a misinterpretation.

[Erasmussimo]

Oops! Thanks, Dantheman, for correcting my on the Third Amendment. Of course, it's one of the few areas of the Constitution that the Bush Administration hasn't attacked yet -- but I suppose they're working on it. ;-)

Interesting hypothesis about generational crisis. I hope we don't have to go through a crisis, but maybe we need one to shake us up and fix some of the horrible problems we have with our government.

[Steve]

Bingo! In fact, as you can easily verify by checking out the Congressional Record of the 14th amendment debates, a key purpose of the 14th amendment was to stop southern states from disarming freed slaves.

But then I don't get why the individual rights supporters are always so adamant that the debates from the Founding support their point of view, if individuals didn't gain rights they could enforce against the States until Reconstruction.

It seems to me, Brett, that you advance a plausible theory in support of the individual rights case, but I'm not sure that your theory is "the" theory. After all, not everyone agrees with the incorporation doctrine, and most of the opponents of that doctrine seem to be on the political right.

[Katherine]

"if we agree that the 'citizen soldier' rationale as a basis of A2 is anachronistic, it's just "prosecutorial discretion" (a.k.a. an interpretation of the law that agrees with gun-lovers, and not with the original spirit of the law) that's keeping A2 alive."

No it's not. There's not much case law about this--can anyone point me to a Supreme Court case holding that a gun control law is unconstitutional? I'm not sure there is one. What's keeping the amendment alive is the very strong political opposition to gun control. The fact that the NRA can argue "it's in the constitution" probably contributes to that opposition, but that's not quite the same thing.

Even if that weren't true, it would be a bad analogy. For one thing, it would be unconstitutional to prosecute people for violating MA's blasphemy law; it's not just "obsolete". For another, choosing not to imprison people for violating a criminal law just isn't comparable to imprisoning people in violation of a constitutional provision, even an obsolete one. I agree with you about the Second Amendment being obsolete, but it doesn't excuse you from complying with the text. (I don't agree with Brett at all about what compliance with the text requires). After all, plenty of people think the Geneva conventions & habeas corpus are quaint and obsolete.

[Francis]

I find that the most interesting part of the 2nd A. is the "keep and bear arms" bit.

It's my understanding that fowling pieces, duelling weapons and other bits lying around the house that were sharp or went bang weren't, in 1789, "arms". "Arms" were military weapons only, and "bearing arms" meant acting in a military capacity.

So, it seems to me that the Second Amendment was saying that a State Government could not legally deny the right of any person to own his own musket and join the local militia.

What does that mean for today? First, the Second Amendment is silent on the power of the states and the federal government to regulate things that aren't "arms", like pistols, shotguns and swords.

Second, much as the courts have upheld time,place,and manner restrictions -- but not content restrictions -- on the exercise of free speech rights, I would uphold competency and training requirements -- but not absolute bans -- on those who want to own military weapons and participate in well-regulated militias. (Note: most Swiss households own an assault weapon, iirc, pursuant to that country's militia laws.)

So, I would hold that five-day waiting periods for handguns and other regulations of weapons that aren't "arms" are perfectly constitutional. But the assault weapons ban is not. Each person has an individual right to own a M-16, but I would uphold laws that condition the exercise of that right in participation in a competent militia.

[Mark]

I have no intention of immersing myself in the disaster that is the incorporation debate. However, analysis of any element of the Bill of Rights should always keep in mind that the Bill of Rights was a peace offering to the anti-Federalists like Jefferson and Paine. Indeed, the lack of a Bill of Rights was a central argument against the Constitution, since it was believed necessary to ensure the federal government did not overstep its bounds vis a vis state governments or individuals.

Viewed in this light, each element of the Bill of Rights is remarkably consistent in aiming towards goal of preventing federal government overreaching. To argue that the word "militia" in the 2nd Amendment is intended to mean an army of citizen-soldiers who are prepared to defend the federal government would therefore make the 2nd Amendment totally at odds with the rest of the Bill of Rights. The 2nd Amendment makes more sense from the anti-Federalist perspective if it is intended to prevent the federal government from making revolt against the federal government impossible. Remember, the "militia" of the Revolution weren't defending their government- they were resisting it.

[Kenneth Ashford]

Mark writes:

"Viewed in this light, each element of the Bill of Rights is remarkably consistent in aiming towards goal of preventing federal government overreaching. To argue that the word 'militia' in the 2nd Amendment is intended to mean an army of citizen-soldiers who are prepared to defend the federal government would therefore make the 2nd Amendment totally at odds with the rest of the Bill of Rights."

Fair point, but that still doesn't move it into the "individual" rights category. It could still be a "collective" right vis-a-vis the regulation of state militias holding back an overbearing federal government.

[Doctor Science]

Remember, the "militia" of the Revolution weren't defending their government- they were resisting it.

That is certainly not what was going on in Massachusetts. They were resisting the non-local government, they were defending their local government. The government they resisted did not seem to them to be "theirs", the one they were defending *was*.

[Tony P.]

To me, the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay. The militia types seem to argue that people need guns mainly to defend their right to own guns.

At least, I am not aware of any instances when a citizen militia rose up to prevent government oppression of, say, Americans of Japanese descent. Had _those_ citizens taken up arms to resist internment, whose side would "the militia" have been on?

-- TP

[cleek]

What's keeping the amendment alive is the very strong political opposition to gun control. The fact that the NRA can argue "it's in the constitution" probably contributes to that opposition, but that's not quite the same thing.

i completely agree.

just to clarify, though...

i have to admit i'm abusing legal terms here, being a programmer and not a lawyer; but when i wrote "prosecutorial discretion" way back there, i was trying to snarkily include basically everyone in the US in the category of "prosecutor" - that is, the vast majority of American have pretty much agreed that the Constitution gives us all the right to own guns, full stop; and most of the few who've read it and have actually thought about what the 2nd amendment says probably don't want to try fighting it because the common interpretation is so deeply ingrained (and politicized).

who is going to argue that Joe Blow can't have all the guns he wants ? nobody. common wisdom says you can't touch his guns. nobody will push the issue. we've all agreed that it's a losing battle, right or wrong.

like i said, abusing the terms.

[Kenneth Ashford]

"To me, the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay."

It's not a bad faith argument from a legal interpretation perspective, since government tyranny clearly weighed heavily on the minds of the Framers of the Constitution.

But as a contemporary political argument, you're right.

[Kenneth Ashford]

"who is going to argue that Joe Blow can't have all the guns he wants ? nobody. common wisdom says you can't touch his guns. nobody will push the issue."

Maybe we should ask how the NRA how it feels about Joe al-Blowmassa having all the guns he wants.

[dutchmarbel]

@cleek: I'm staying out of this discussion, coming from a culture that thinks regular changes to the constiturion are a good thing, but I can't resist pointing out the whole list of weird laws in Massachusetts.

[trilobite]

If you think the Framers consciously used different phrases for different reasons, the phrase “the people” -- combined with the use of military terms like “militia” and “bear arms” -- strengthens the collective-right interpretation.

But, as Sebastian said, it doesn't strengthen it much given that they apparently use "the people" elsewhere to mean individual voting citizens. Citizens normally were the militia pool, too, so the reference to the militia doesn't forward a collective construction of "people."

Under this reading, Congress couldn’t ban gun ownership on an individual level. But, a state could do what it wanted to.

Alas, that sounds very reasonable, and in tune with the federalist slant of the Bill of Rights. I happen to be convinced that it is a lousy result for national policy, as gun-nut states will sell the dern things like hotcakes and flood more urban states, but I can't help that. Maybe after enough people die, we'll be able to outvote the selfish, do-nothing dreamers who think their theoretical power to rise in rebellion outweighs the lives of citydwellers.

As to the 14th Amendment, whatever the Reconstruction Congress may have intended, the Supreme Court has arrogated the right to decide whether any particular part of the BoR is implicitly incorporated into the 14th Amendment, and it's really too late in the day to argue the point. The S.Ct has not ruled yet on the Second Amendment.

IIRC, the test for incorporation is whether the right is "essential to a concept of ordered liberty," which means almost nothing. But I suspect that after over a century of gun regulation in various parts of the country (including such nadirs of government oppression and collectivism as Tombstone, Arizona) it would be difficult to argue that the untrammelled right to bear arms is manifestly essential to liberty. If I were arguing the case, I might also point to the Velvet Revolution as proof that a tyrannical central government need not be brought down by force of arms, and I would challenge the other side to show a case in which a purely internal rebellion by force had in fact worked.

[Brett Bellmore]

"Fair point, but that still doesn't move it into the "individual" rights category. It could still be a "collective" right vis-a-vis the regulation of state militias holding back an overbearing federal government."

Except that this view is total historical revisionism. The 'collective right" interpretation was invented in the mid-20th century by gun controlers. Nobody has been able to uncover any evidence that ANYBODY was advocating it as a way of understanding the 2nd amendment before then. Whereas you can produce reams of commentary from the founding era and around the time of the 14th's adoption showing it was understood as an individual right. You might have gotten some argument about which individuals were entitled to claim it, against which levels of government, but that was it.

I realize this doesn't mean anything to non-originalists, who are comfortable with deliberately 'interpreting' constituitonal provisions so as to defeat what they were intended to accomplish. But it's still the case: The only people who are willing to accept the 'collective right' interpretation are people with strong motives for rendering the 2nd amendment moot.

Because that's what it was invented for, it was never an effort to objectively figure out what the amendment means.

[Doctor Science]

the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay

How does an armed citizenry keep government wiretapping of private conversations at bay? Or no-fly lists? Or other here-and-now examples of actual government tyranny?

What do guns actually give modern American gun-owners the ability to *do*, vis-a-vis the government (state or federal)? This is a real question.

If there's no real answer, then I fall back onto my analysis: this is not a strictly political issue, but a psycho-sexual one. The absolute virulence with which men who would never fire a weapon against an authority figure react to the idea of having their guns restricted makes no sense from a practical angle. Somewhere, Sigmund Freud is laughing and lighting a *really* *big* cigar.

[Brett Bellmroe]

Sheesh, I don't think there's anything stupider than gun controllers resorting to Freud. Who actually declared fear of guns to be the psycho-sexual problem... If you really care what a quack had to say on any subject in the first place.

[Katherine]

"defeating what they were intended to accomplish" loses force when the apparent purpose has been so overtaken by events as to make it *impossible* to accomplish. The militia model that the Second Amendment envisions does not exist anymore; it's been replaced by a military structure--large standing army with the capacity to kill us all many times over--that makes the right it purports to protect completely useless in the face of an oppressive government. Unless you do think it requires, if not nukes, than at least private ownership of artillery, grenades, rocket launchers, anti aircraft guns, tanks, etc. There's nothing in the text that compels that interpretation.

I'm all for a purposive reading of the text, but when the purpose becomes impossible to accomplish, it loses force. So you're left with this relic which we have to try to interpret fairly because it's useless but it's in the middle of a bunch of very useful positions. And I agree with Anderson about where you go with the text: individual right, subject to regulation, including regulation about what type of arms. The "does a soldier get this weapon" test relies on: (1) defining the "purpose" of the Amendment at a level of generality which is chosen to reach a particular result; (2) defining "soldier" in order to reach a particular result--Brett apparently wants machine guns legal but nothing more, so he arbitarily chooses an infantryman as the soldier instead of a state police officer, a sniper, an artilleryman, a bomber pilot, etc. etc.

Also, I do think that there's a pretty damn good argument that the Second Amendment does not pass the "essential to a concept of ordered liberty," test.

[Mark]

Kenneth Ashford:
Yes, I'm aware that my post by itself doesn't make it an individual right. But most of the more salient points that it is an individual right had already been made, and I didn't feel like rehashing them.

As for the idea that keeping government tyranny at bay in the modern context is a bad faith argument for the right to keep and bear arms, I would strongly disagree. If the 20th century taught us anything, it should have been that tyranny can happen in just about any society, given the right circumstances. And we should never forget that the tyranny of the majority can be - and frequently is- just as bad as any other kind of tyranny. I'd even say that tyranny of the majority is a precursor to the development of totalitarianism and authoritarianism in modern societies (e.g., Nazi Germany, Rwanda, Zimbabwe, Iran, Venezuela, etc.).

[Katherine]

You would strongly disagree based on *what*? Are you arguing that the Rwanda genocide would have gone off better if the larger ethnic group had been armed with guns instead of machetes? Yes, it's possible that the democratic governments without a right of private gun ownership would become tyrannical; it's possible for governments to massacre nonviolent protestors--but you're simply not addressing the argument about how private gun ownership actually prevents tyranny.

[Katherine]

(I mean, simply not explaining how private gun ownership prevents tyranny.)

[Doug H.]

If the 20th century taught us anything, it should have been that tyranny can happen in just about any society, given the right circumstances.

True, but those weren't exactly unarmed tyrannies either. i.e. I've heard the argument before that Hitler was for gun control. He was. Just not for the SA.

[Doctor Science]

Brett:

I would love to think Freud was wrong, believe me. That's why I think the bastard is laughing at me.

To me, the importance of firearms to American images of masculinity seems overwhelmingly obvious; does it truly not seem obvious to you?

My point is:

1. Guns are not currently very practical tools for resisting tyranny, nor are they used that way.

2. Nonetheless, gun-owners are *extremely* reluctant to contenance any control or restriction on them. They are clearly more important symbolically than they are practically.

3. Guns are a ludicrously obvious penis symbol.

4. The Million Mom March was about gun control.

5. I have embraced my inner castrating bitch.

If it walks like a phallic symbol, quacks like a phallic symbol, and wags self-importantly like a phallic symbol, *it's not a duck*.

[trilobite]

Hypothetical, all you Second Amendment literalists out there:

Say that the Federal Government grants a block grant to states to create a militia, which shall be called the "National Guard," and which shall be controlled in its ordinary operations by state governors but subject to overrriding federal control.

The federal government then requires the states, as a condition of receiving funding for its National Guard units, to disarm the remainder of its citizenry, as the plenitude of arms in individual hands is contrary to the public interest in regulating a militia.

Subsequently, the federal government passes leglislation restricting Guard membership to Party members.

How does the Second Amendment help prevent government oppression, again?

[Brett Bellmore]

"3. Guns are a ludicrously obvious penis symbol."

PSYCHOTHERAPY
(Melanie Safka)

Oh, mine eyes have seen the glory of the theories of Freud.
He has taught me all the evils that my ego must avoid:
Repression of the impulses resulting paranoid
As the id goes marching on.
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

There was a man who thought his friends to him were all superior,
And this complex he imagined made life drearier and drearier,
Till his analyst assured him that he really was inferior,
As the id goes marching on.
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

Do you drown your superego in a flood of alcohol (or something else)
And go running after women till you're just about to fall?
You may think you're having fun but you're not having fun at all,
As the id goes marching on.
Glory, glory, - (You're not singing, you're just clapping!)
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

Oh, sad is the masochism, the vagaries of sex,
Have turned half the population into total nervous wrecks.
But your analyst will cure you, long as you can pay the cheques,
As the id goes marching on.
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

Is your body plagued by aches and pains that you can't understand:
Compound fractures, ingrown toenails, floating kidneys, trembling hands?
There's a secret to your trouble: you're in love with your old man,
As the id goes marching on. (All together now!)
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

Freud's mystic world of meaning needn't have us mystified.
It's really very simple what the psyche tries to hide:
A thing is a phallic symbol if it's longer than it's wide,
As the id goes marching on.
Glory, glory, psychotherapy,
Glory, glory, sexuality,
Glory, glory, now we can be free
As the id goes marching on.

[ThirdGorchBro]

Interesting discussion on the constitutional arguments, though one I am ill-equippted to participate in. I took a semester of con law as an undergrad, and have long since forgotten everything I learned. I tend to agree with Brett's arguments that the amendment was intended to protect an individual right, but I doubt I could argue it any more effectively than him.

I would like to ask Katherine, Doctor Science, and other proponents of gun control how they envision a nationwide ban on, say, handgun ownership. It didn't work for booze, and it doesn't work for drugs, so what would they do to make a handgun ban effective in the face of large-scale defiance of the law? Would they increase the size of the ATF? How would warrants be served against suspected handgun owners? SWAT teams kicking down doors in the dead of night, like our heroic drug cops do? In other words, do they really think criminalizing a very large percentage of the American population would be any less a disaster than it was during Prohibition or is today wrt the War on Drugs?

[Ugh]

3GB - I don't think they're advocating a nationwide ban on handgun ownership (though maybe they are), just that regulation should be allowed (e.g., no fully automatic weapons, caliber restrictions, etc.), and that said regulation is consistent with the 2nd A.

My own view is that people would think the general availability of guns less of a problem if we didn't live in an incredibly violent culture.

[Katherine]

I don't know if a handgun ban is good policy or not. I just don't think it really belongs in the bill of rights. It's not the same sort of fundamental liberty; it's not a real check against government abuse; it doesn't belong in there. An amendment to repeal it is politically impossible, & the attempt would be politically disastrous, but if we were starting over I would leave out that provision. There's all kinds of activities where criminalization might do more harm than good; they don't need to be explicitly protected in the bill of rights.

[Doctor Science]

Brett: very cute, but it doesn't actually answer my question. Have a battery-operated salami.

ThirdGorchBro:

I don't think a nationalwide handgun ban would work, for exactly the reasons you cite. But it's massively clear to me that "there are too many guns, and the guns are too big" (spot the quote! win a prize! -- it doesn't have to be a salami).

So, how about licensing -- with training & testing similar to auto? How about not selling armor-piercing rounds? How about buy-back systems?

[Incertus (Brian)]

Unless I missed it in my scrolling, I don't think anyone has given my early question an answer of any sort--why does it matter what the Framers thought, or even what the Congress intended when they produced the 14th Amendment? We don't live in their world anymore--thank the heavens--and they didn't live in this one. Why on earth are we still applying their definitions to our problems? We don't seem to do it in other circumstances--speech doesn't mean the same thing now that it did in 1787. We've got a much wider variety of religions now than we did then. The press has taken on a life that no one could have imagined at the time, not to mention the way we've modified the way we look at individual rights in the intervening years. So why on earth should we give a damn about what Madison, et al, felt about arms in the 18th century? Justify it, please.

[Mark]

Trilobite:
Your hypothetical is flawed, as it rests on the presumption that the federal government can define by statute the word "militia". You obviously did not read the multitude of posts explaining why the term "militia" does not refer to the National Guard. In essence, your hypothetical rests on the assumption that the 2nd Amendment is a collective right, when the whole point of our argument is that it is an individual right.
Katherine:
My mention of 20th century tyranny was in response to the claim that, in the modern context, prevention of tyranny is a bad faith argument for the 2nd Amendment, and the subsequent suggestion that true tyranny in the US is now impossible. So, I was simply trying to demonstrate that tyranny is possible, even in a fairly democratic society.
As for whether the 2nd Amendment would allow the "militia" to successfully defend against tyranny, well, there are a lot of variables there depending on the nature of our hypothetical revolt. The one thing you can say, though, is that it increases the relative cost for our hypothetical tyrant to hold on to power.
I will acknowledge that my original post should not have used the word "prevent", which is a bit too absolutist- it is difficult to imagine a situation where ANY right would, by itself, prevent tyranny. The better phrasing would have been "act as a deterrent" or "additional necessary safeguard."

[Ugh]

I wonder if the better analogy isn't to what weapons any particular soldier can wield today (from the aforementioned M-16 to a B2 bomber), but to what private citizens not in military service were generally allowed to own circa 1791? Assuming that didn't include things like that cannons of the time (which it may have, I guess), then we can limit the scope of the 2nd. A. to handheld arms, and then bicker over whether "well-regulated" allows bans on full-auto sub-machine guns or not.

[Brett Bellmore]

"My own view is that people would think the general availability of guns less of a problem if we didn't live in an incredibly violent culture."

Except, "we" don't. The level of violent crime varies by several orders of magnitude from place to place in this country. Because we don't have just one culture, we have a lot of different cultures.

I, for example, live in a neighborhood where you can leave your home unlocked without any concern. There hasn't been a violent crime on my street in, oh, going on twenty years. And we're all armed to the teeth.

That's one of the problems here; Gun controllers are using violence taking place in some of our more dysfunctional cultures as an excuse to disarm people living in cultures which work just fine. And that really pisses off the people whose rights are being attacked because somebody else abuses them.

[trilobite]

Mark, you may be thinking of some other thread, as there are no posts on this on that discuss the NG. But go ahead, post one. What is a militia, if not the National Guard? And if the National Guard is a militia, why not regulate it? I think your point comes down to, we can't regulate the militia pool. So, okay, let's draft EVERYONE into the National Guard, release all but .1% from active duty, and regulate them by forbidding them to bear arms. It comes out to the same thing. If I'm registered for the draft, am I not in effect already drafted, just awaiting a call up to active duty? If I'm in the militia pool, is that really different from being in the militia?

I do see your distinction, it's just that I also see the rest of the text of the Amendment.

By the way, I see absolutely nothing in there forbidding me to restrict the possession and bearing of bullets. Or gunpowder, or primer. Do you?

I'm also not at all sure why everyone seems to think that a right to keep and bear arms has to be an absolute right. The right to free speech is also not to be restricted -- EXCEPT FOR libel, slander, obscenity, threats, creating clear and present danger, noise pollution, topless dancing, "fighting words," betrayal of government secrets, speech over dedicated spectrum owned by someone else (even if unused), criminal contracts, solicitation, false advertising, false labeling, infringement of copyright or trademark, political ads in the wrong time and place, harassment, and probably a few I can't think of right now.

In other words, it's absolute except in all the ways that it would make it very inconvenient to conduct a society. Well, I don't know about you, but I find it G-d D-mned inconvenient to be scared every time my kids go to school because somebody might decide to hose down the playground, and I think people who get shot by their local crack dealer find that massively inconvenient as well. In fact, I'll go out on a limb and say that getting shot is even less convenient than seeing a topless dancer. So, yeah, let's regulate it and call it non-infringement. We don't infringe the implicit constitutional right to travel by making sensible safety restrictions on driving, including taking away licenses for nothing but going too fast too often.

Gun absolutists make me tired.

[ThirdGorchBro]

Katherine and Doc Science, thanks for your responses. I for one am certainly not an absolutist on the issue, and have no problem with licensing requirements or bans on machine-gun ownership, etc. I also freely admit that this debate is at its bottom an emotional one, not a rational one. I'd be willing to bet that most of us, on either side, either like guns or don't like guns, and that's how we choose our side in this debate.

[Ugh]

Brett - if there was a way of keeping guns confined to yours and similar streets, I'm sure the gun controllers would soon vanish, or at least become insignificant.

[Katherine]

Beyond not wanting them in my house, I'm fairly neutral on guns. It's gun nuts I don't like.

Seriously: that's what puts a chip on my shoulder. The claim that gun ownership is a fundamental civil or human right, equivalent to free speech, freedom of religion, due process, equal protection, bans on torture &
summary execution. No, it isn't. It just isn't. Even conceding that it's more explicitly protected in the bill of rights than the right to privacy--well, that was their mistake. We may be stuck with it, but let's please not pretend that it's the same sort of fundamental liberty. It's an anachronism every bit as much as the Third Amendment; except that this particular anachronism lines up with a lot of people's recreational activities or insecurities about crime. But as a fundamental liberty? Or as a fundamental protection of other liberties?

I don't have a real problem with hunting. I have a giant problem with people acting like the assault weapons ban is comparable to the suspension of habeas corpus, or wondering why Amnesty international doesn't protect the human right of bearing arms.

[Brett Bellmore]

Katherine, there are nuts on both sides of this argument. I mean, for instance, take Trilobyte's reading of the 2nd amendment. It is literally insane: Nobody in their right mind could possibly think it's an honest reading of what that text says. In fact, founding era commentators on the 2nd amendment used the scheme he proposed as an example of what the 2nd amendment was supposed to FORBID!

But there are people who suffer from what we pro-gunners have come to call "gun-aversive dyslexia";

http://www.guncite.com/journals/tennmed.html

People suffering from this condition are apparently simply incapable of understanding when they're reading something that doesn't agree with their viewpoint. They'll do things like look at graph showing crime go down where guns are more common, and refer to it doing the opposite.

Or reading an amendment prohibiting disarming the people as empowering the government to do it.

[trilobite]

Hear, hear, Katherine.

I cannot take gun ownership seriously as a human right or a guarantor of liberty. Gun lovers generally seem to fall into three categories: criminals, authoritarians, and the kind of libertarians who think all government is intolerable but never actually do anything about it. None of these are going to defend liberty. Private individuals have hardly ever successfully resisted government oppression by force of arms -- our Revolution was basically a civil war, with a government and state army on each side, and we still needed a ton of help from France. I guess you could point to Russia, China, France, and Iran, but what lousy role models! Plus, those were all very top-heavy centralized states, unlike ours. In this country, the most the NRA-ers will ever accomplish is what they did at Waco and Ruby Ridge: take a few cops with them when they die.

If the NRA actually cared about liberty, it would a) join the ACLU, and b) scream bloody murder about increased government search and surveillance powers -- no revolutionary movement is going to get off the ground with the NSA tapping its phones. That the NRA has taken no position on this proves it's a phoney.

[Brett Bellmore]

Tril, on the one hand we've got the ACLU, which despite advertising itself as your one stop civil liberties defender, eventually got around to explicitly disavowing any concern for the Bill of Rights, (Strossen's notorious "not coextensive" remark.) and to this day still prostitutes itself by throwing it's credibility behind the revisionist take on the 2nd amendment.

On the other hand we've to the NRA, which despite explicitly being a single subject lobbying organization, (Note that it's National Rifle Association, not National Civil Liberties Association.) has occasionally teamed up with the ACLU to defend the first amendment.

Pretty good for an organization with a single purpose: Defending one of the civil rights your vaunted ACLU can't bring itself to defend.

[trilobite]

FWIW, I agree with you about the ACLU, but I'm still glad it's there b/c it comes a lot closer to generally defending liberty than any other organization.

But the NRA -- what good does it do to keep your guns if you cannot organize in private? You'll simply get killed in lots of one-man stands. Anybody seriously concerned that he may someday have to use his weapons against the government, and who wants more success than just taking a couple of thugs down with him at best, should join the ACLU and also push hard against pro-surveillance legislators and legislation. Otherwise, the NRA is just a hobbyists' group for a hobby that happens to have some constitutional support, and all of its rhetoric about preserving liberty is just that, rhetoric. I don't mind that people like guns, they're pretty neat and all, but I don't think they should give themselves airs, and if they don't really care about using guns to preserve the option of revolutionary militia, they should stop pretending they do. It's bad faith.

[Tony P.]

WHY SHOULD WE LISTEN TO THE FOUNDERS?

Brian:

As someone who had to pass a test and take an oath to sign up for this government of the people, by the people, and for the people thing, I may not be the best person to address your question. On the other hand, what kind of answer can you expect from anybody who immigrated into the contemporary US via the birth canal? Native-born citizens are in an odd position vis a vis the rules of a nation into which they did not in any sense _choose_ to be born.

So, for what it's worth: I consciously chose to join a game with pre-established rules. One of those rules is that the Constitution circumscribes all the permissible rules. "The" Constitution is not a piece of parchment under glass in the National Archives. It is a set of ideas accepted by contemporary Americans. Which Americans? Well, enough of them to make the dissenters marginal crackpots. For imstance: it is almost universally agreed among present-day adult Americans that the way to amend "the Constitution" is to follow the procedures laid out in the Constitution itself. It is marginal crackpottery to suggest, for instance, that the 2nd Amendment is null and void merely because the Founders never contemplated "arms" beyond cutlasses and muzzle-loading muskets. It is also marginal crackpottery to argue that a couple of centuries' worth of Constitutional explication by the courts ordained by the Constitution count for nothing. Roe v. Wade may have been "judge-made law", but any American under 40 entered a nation where Roe was as much a part of "the rules" as the 2nd Amendment. Americans can argue that Roe _should_not_ be part of the rules, without being marginal crackpots. But if they argue that it _is_not_ part of the rules, they are marginal crackpots.

So I suppose the answer to your question is this: if we Americans (by birth or by choice) want to change "the Constitution" as understood and accepted by the generation of Americans who let us into this place (and are still around to argue with) all we have to do is agree amongst ourselves what our new understanding is, and change "the Constitution" by constitutional methods. What defines "constitutional methods"? Well, methods that all Americans (except marginal crackpots) agree are "constitutional". I freely grant that this seems like circular logic, but I do insist on this distinction: it's one thing to argue against abolishing the 2nd Amendment by a vote of 2/3 of Congress and 3/4 of the states, and it is quite another to argue that such an abolition would be "unconstitutional". The former is the American position. The latter is a marginal, crackpot position -- though it does, occasionally, seem to be the NRA position :-)

-- TP

[Brett Bellmore]

I've occasionally heard that latter view expressed, but I assure you it's a marginal position within the NRA, too. Though it's not quite totally irrational, the reasoning being that the Constitution was originally ratified with the understanding that the Bill of Rights would follow, so repealing any part of the Bill of Rights is a deal breaker.

This is not a good legal argument, to say the least, whatever it's merits as moral reasoning.

Kind of irrelevant, anyway, under the circumstances; All but a handful of states have analogs to the 2nd amendment in their state constitutions, a few adopted fairly recently. And state constitutions are, typically, quite a bit easier to amend than the federal constitution.

Where has the gun control movement managed to get any of these state RKBA amendments repealed? Nowhere in recent memory, that I know of.

There simply isn't any base of support for repealing the 2nd amendment, and I don't see there being any significant mass movement in that direction any time soon. Not suprising, the gun control movement has never been a real mass movement, it's perhaps THE classic example of astroturf.

[John Thullen]

I've operated a bunch of different weapons (you wouldn't believe why, but I'm dying to tell you) and I don't like them because I have the Barney Fife yips.

But I'm pretty good in hand-to-hand combat, if you count noogies, wetwillies, and the occasional eye-gouging. I once knocked a guy out in a softball game fracas; the big ones go down hard.

My father-in-law had a grenade. Thing is, no one knew he had a grenade until after he died and we found it hidden. We took it to the gun store and everyone's eyes lit up, like all we needed was a foxhole and some foreigners to complete the scene. The local military types finally took care of it.

Somehow though, everyone else in town knew he had a grenade because they never broke into his house.

Oddly, they never found out we disposed of the grenade and the nine or ten guns and the excessive ammo because they still wouldn't break into my mother-in-law's house.

Which is a coincidence, because I have no grenade and no gun and no one has broken into my house either.

I'm curious about this claim that Americans loves their guns to protect themselves from government tyranny. What is the tipping point for this (you know, where does the marginal tax rate need to be), because given the rhetoric on the subject from various hard guys on the right, in and out of office, there doesn't seem to be much follow-thru?

Maybe guys with lots of guns and juicy hard talk are pussies and they secretly like tyranny. Well, the pretend kind.

I'm not against hunting with a gun and I really don't mind folks owning a weapon of some reasonable kind if they wish to protect themselves in their homes.

Here's what I mind. Those guys with paunches on the hunting channel, camoflaged from head to toe like the guy with the scarred face in "Platoon", sneaking up on a tom turkey in the woods and whispering to the viewers.

I don't mind that. Then they shoot the tom turkey (beautiful plumage arrayed, he thinks, for the drab females; but unarmed, minding his own business, not even contemplating breaking into Brett's place) from about 40 feet away.

Fine, I don't mind that either. In fact, when do we eat? I'll make the oyster stuffing, having blown the oysters out of their lairs with sticks of dyamite.

Wanna know what I mind? The two fat guys, out-of breath from lugging around their flasks, trundle up to the now-dead turkey and hold him up and tell us how BEAUTIFUL that dead turkey is, ain't he a beaut...... and all I can think is, shut up, the turkey WAS beautiful a few minutes ago before he got it in the gizzard and the sun reflected off of his feathers as he moved through the trees.

Now he's dead meat and his plumage is fading. Go home and eat the meat.

But shut up. I think the turkey needs his own show.

[Fledermaus]

Basically, what's the phrase about the militia doing in there in your reading, if it doesn't have anything to do with the rights in the second part of the sentence?

I think of it as more of a historical anachronism. The founders all knew and studied classical history in their day and drew as much from Roman Republic and Greece as they did England. Back in Roman days all land owning males (the same types who were granted the franchise in the US) were also required to maintain a set of armor to wear if called in defense of their country. When there were not any wars on, they still had to keep the arms ready.

This seems the only way to solve Dr Science's disparity.

[Brett Bellmore]

But it does have something to do with the right, and you don't have to do a lot of research to find a contemporary explanation.

They thought a properly trained and equipped, "well regulated" in the language of the day, militia, was necessary for a free state to be secure. (Not any state, a free state.) They may have been factually incorrect about this, or circumstances may have changed, but they did believe this.

They also knew that states are sometimes lazy about doing what's necessary for such security, or even may end up run by people who don't WANT them to remain secure.

So it was entirely possible that the militia system might have been abandoned, or transformed into the practical equivalent of a standing army. As did in fact happen.

However, if the right to own and train with the relevant weapons was protected, even if the militia system were abandoned, an armed populace would exist from which it could be revived at need on short notice.

Thus respecting the right of people to own and train with such weapons outside of the militia protects the militia system against government efforts to render it impossible to restore.

But it's clear from contemporary writings that they didn't consider this to be the only value of the right. It was more of a way to underscore why the right was particularly important.

[Fledermaus]

Well Brett, here's my question how does one interpret the words "free state". We may read it today as 'the US nation-state' but they didn't talk that way back then. A state was VA or MA or NY or PA. But the US when described was plural. I tend to think (note: I'm no originalist; but I do like history) that the founders envisioned a EU type arrangement. The gov't would manage trade between the states and conduct diplomacy with Europe on behalf of all states.

[Mark]

A few (hopefully) final thoughts from me:
1. Despite assumptions to the contrary, I do not own a gun, though I once fired a target pistol at a shooting range. Also, I have spent plenty of time living in the Big, Dangerous City, and I've never lived in what you would call a rural area. I have no personal stake in the 2nd Amendment.
2. I do not believe the right to keep and bear arms to be anywhere in the same ballpark as the civil liberties Katherine mentioned. However, as I said before, this right raises the bar for government to be able to engage in tyranny.
3. My goal isn't to say whether the drafters of the 2nd Amendment were right or wrong in their beliefs about its effects; certainly, given their personal history, their beliefs were at least justifiable, but this doesn't mean they were right. I personally believe they were mostly right on this issue; however, a reasonable person can conclude they were wrong.
4. Regardless of whether the drafters were right or wrong, this debate is supposed to be about whether the 2nd Amendment is an individual or a collective right. I have yet to see a compelling reason as to how the 2nd Amendment can be read to be a "collective" right rather than an individual right, particularly taken in context with the rest of the Bill of Rights.
5. I am not a 2nd Amendment absolutist in any way, shape or form. Frankly, just like any other constitutional right, firearms laws should be subject to strict scrutiny by SCOTUS; however, firearms laws are far more likely to survive strict scrutiny than other Constitutional rights, in my opinion. Indeed, I think most (though not all) existing state and federal firearms laws and regs would (and should) pass strict scrutiny because the government interest may be particularly compelling. Since most gun laws are also not absolute prohibitions, I think you can also make a winning argument that, particularly on the state level, they are narrowly tailored.