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“Git back onto my property, property!” is a critical and not-to-be-ignored part of our national history And it’s very relevant to gun control.
The most compelling explanation I’ve seen on the topic of the Second Amendment is that, like much of the Constitution and the Bill of Rights, it was about limiting the power of the federal government over the states, who retained primary authority over “the people” within them. Unsurprisingly to anyone familiar with the debates of the late 1780s, it turns out to be about slavery.
Yes, the Second Amendment begins with the prefatory “A well regulated Militia, being necessary for the security of a free State,” before getting to the part that “Right to Keep and Bear Arms” (“RKBA”) advocates most want to discuss, that “the right of the people to keep and bear Arms, shall not be infringed.” (Comma usage during this period was different from what it is now; ignore all but the second comma.)
RKBA opponents key in on the term “well regulated Militia” (use of hyphens and capitalization has changed as well) and point out that people nowadays aren’t part of any formal militia, let alone a well-regulated one. RKBA advocates counter that the term “militia” referred at the time to all able-bodied men. And so on. The key to understanding the Second Amendment, though, lies in the part that is most often overlooked by both sides: what does “being necessary for the security of a free State” mean? Certainly that will tell you something about what is meant by “well-regulated militia”!
Well, why would an armed citizenry be necessary? Presumably, to kill people. We can think of a number of possible objects of the force that could be mustered:
1) A foreign enemy (whether a nation, a territory, or privateers)
2) The federal government itself (or at least its Navy, as the Constitution made no provision for a standing army)
3) One or more other states
4) Its own government, in the event of a popular uprising against the government
5) Its own citizens or residents, in the event of a popular uprising against the government
6) Its own citizens or residents, in the event of something less momentous than such an uprising
Looking at things from the standpoint of the present, we could (and people have) made an argument for any of these six. However:
#1 would seem unnecessary at the time when states were considered to be sovereign
#2 would seem weird to include in a federal Constitution (and also very much opposed to the spirit of the time, as one prod towards a constitution was events such as the Whiskey Rebellion and Shays Rebellion)
#3 would seem to defeat the purpose of a federal Constitution even more, though it does seem plausible
#4 seems implausible, especially give that this is a state militia we’re talking about
#5 seems unfortunately sort of plausible, but a lot less explicit if that’s what they had in mind, and probably unnecessary as well
#6 seems both unfortunate and unnecessary as well as at odds with much of the rest of the Bill of Right
So none of the possibilities seem particularly satisfying. Hmmm — maybe the answer lies in what such militias were actually being used for at the time. And if you were around then, you’d know the right answer, even if it was obscured in the same sort of genteel and shaded language as “the Three-Fifths Clause” and “the Peculiar Institution” and the provision that Congress wouldn’t even discuss a certain topic for thirty years.
7) Militias were used to retrieve runaway slaves — also known as human “property” — which (or let’s say “who”) had a tendency to try to run away to the North to escape their masters.
One problem, though: lots of slaves, not that many actual masters. But you did have a lot of other able-bodied men around who could protect the property of their social betters! How could one make them do so, though?
Oh, that’s easy: force them. States could pass a regulation requiring that able-bodied men be armed (at their own expense) and prepared to ride off to protect the “property” of slaveholders when and as directed. You see, without this, the physical and economic security of the slaveholding states — which were, of course, “free states” from the perspective of their white citizens — could not necessarily be protected. Slaves could just leave, not be returned by non-slaveholding states, and there goes the economy (or so went the theory.) With a well-regulated militia, the security of the free (slave) states could be secured. (This was the basis of the notorious Fugitive Slave Act.)
#7 is a lot more historically accurate — and obviously high on the agenda of slave states — than #1-6.
To review: the “militias “in question were not to allow the states to have military forces so that they could go to war with one another. They were designed to suppress insurrection. Why would one need an amendment at all to allow states to exercise their internal police power? Because the “insurrections” that were of concern here involved slave revolts, slave resistance, and the abetting of both by non-slaves.
Specifically, the concern here was that the federal government would not be empowered to prevent state governments from creating militias — involving small to large groups of people pressed into temporary service — to seek, find, capture, and return to their owners, runaway slaves. The federal government was not empowered to prevent the slave states from mustering its citizens into a militia, as considered appropriate, for this purpose.
As such, the right belongs to each state to oblige its own people (its citizens, at a minimum) to keep and bear firearms to, essentially, be drafted into service to serve the state’s “need” to protect the human property of slaveholders.
We are so far away from the era of 1787 that it is hard for us to see and appreciate the concerns that drove the founding fathers at the time. Obviously, it will be hard to adapt the second amendment for modern purposes. Among other things, this means that the allegation by RKBA opponents that the purpose of the Second Amendment was understood as a collective right for 200 years prior to the D.C. v. Heller decision in 2006 is absurd. After the Civil War, and especially the Reconstruction Amendments, it should have been completely unclear how the original meaning of the Second Amendment ought to have remained in place.
For one thing, one has to contend with the 13th and 14th amendments which respectively outlaw slavery and, among many other things, impose upon the states the obligation to offer the same protections of individuals rights that are imposed onto the federal government.
In this context, Stevens was wrong in his Heller dissnt that the meaning of the Second Amendment, has been “settled” for two centuries and more. It was addressing a collective “right” that no longer existed as such.
But, if people actually look at Scalia’s decision in Heller, they may be surprised at its relative modesty. (The real damage was done in the McDonald v. Chicago decision in 2010, extending the logic of Heller to states and cities.) By no means does Scalia, in Heller, say that “anything goes.” He roots the Second Amendment in the common-law right to self-defense of the home. His decision does not say that any degree or type of firearms is necessarily beyond state regulation, but just that people have an individual right to possess weapons that can be used to protect their home.
The move has been used by critics of Scalia’s vaunted “originalism” to say that Scalia is a hypocrite, doing what he claims in most circumstances to hate. He found a new “fundamental right” in the Constitution, despite its not being there explicitly. This is the hallmark of the “living Constitution” school of constitutional interpretation, which says that the Constitution, like pretty much any other bleeding document intended to last more than a short time, is intended to be interpreted in light of changing circumstances and understandings.
The critics are right: Scalia is a hypocrite. But it does not follow from that that Scalia’s conclusions are wrong. After decades (even centuries!) of citizens being required by their states (or, after the Civil War, allowed and encouraged by their states) to keep guns in their homes, consistent with longstanding rights under the common law — it is pretty reasonable to presume that people believe and through their actions have ratified the understanding that they have a right to use arms to protect their privacy at home. It’s similar to the right to reproductive choice (also sought and exercised for a long long time), the right to teach and use a foreign language, the right to travel within the U.S., and all sorts of other rights that aren’t explicitly included in the Constitution — but are nevertheless protected and recognized by the Ninth and Tenth Amendments.
Properly understood, what Scalia reads into the Constitution in Heller is a pretty modest and reasonable restriction on federal and state power. It doesn’t mean a right to own bazookas and flamethrowers. It doesn’t mean a right to own gigantic caches of automatic or even semi-automatic weapons, although it would seem to allow shotguns kept at home (which are good enough for most home self-defense purposes.) It does NOT mean a right to an endless supply of any sorts of ammunition including armor-piercing bullets.
It doesn’t necessarily extend beyond the home at all — although a state could decide to extend it on its own — into Concealed Carry or Open Carry or (most absurd) “Stand Your Ground” (when it aint’ your ground) laws. It means only a reasonable amount, as determined by each state’s legislature, of firepower is allowed to each resident (who hasn’t had their rights removed by law) to allow for home protection. Anything beyond that is arguable, and it’s up to the state to specify. (Arguably, there’s also a right to hunt non-human prey, but we’ll leave that aside for now.)
It doesn’t limit the ability of the federal government to regulate interstate commerce per the 14th Amendment (which of course also amended the Second.) It doesn’t limit the ability of any state to prohibit the importation of items that it considers dangerous into its territory, with the exception of such trade in arms and ammunition as is necessary for home protection. Most of what advocates of weapons control want is still possible so long as it does not infringe on the basis right that if you have a home you have a right to protect it.
Gun-control advocates can live with that sort of compromise understanding of our right – which gives states the power to regulate their citizens’ access to and use of guns as effectively as, say, California does the import of agricultural products from out-of-state that may bring in invasive pests or diseases.
The basis for a reasonable compromise is right there in Scalia’s Heller decision. We opponents of the sort of access to guns that leads to mass slaughters outside of people’s home really can work within Heller’s framework (although parts of McDonald have got to go. That’s the path to resolving the problem of guns and ammo in a constitutional way. We just have to decide to take that path.
Here’s the rub: The Second Amendment exists. Ignoring it isn’t going to happen.
If we decide it needs to be changed, then there’s a process to do just exactly that.
The problem is we don’t have politicians with the backbone to start the conversation?
Hillary Clinton and Barack Obama don’t respect the 2nd Amendment. How many times have we heard otherwise?
Why? Because they’d rather get elected.
Want gun control? Insist your preferred Presidential candidate back a change to the Second Amendment.
I won’t be doing that, but at least I can respect you for playing by the rules to affect change you believe in. That’s what we’re supposed to be about.
So the only legitimate way to affect change on this issue is to change the Second Amendment? That seems to ignore lots of, er, legislative history and legal precedent, on a whole host of issues.
Greg is spot on…Scalia has noted that there is nothing stopping Congress, or other legislative bodies, from regulating the kinds of guns American citizens may own. Whether or not lily-livered legislators are willing to do so at this point in history is another matter.
That sort of legislative action can change the Second Amendment, in understanding and in practice.
Personally, I get a kick out of how Democrat candidates can suddenly get all gun happy, as when Hillary was touring western Pennsylvania in 2008 – a state that was up for grabs in the primary.
Then they break out the “I come from a long line o’ “huntin’ folk,” routine – regular Jed Clampet-like. Sometimes we even get to watch some urban doofus decked out in his best Elmer Fudd hunting get up.
Wetched Wabbits, I tells ya.
Many of them play both sides of the coin, and it’s pathetic.
Hillary’s accent does seem as malleable as Bernie’s does not. His position has been pretty consistent, though, even though I disagree with him in part.
No, but it’s the best way to put the issue to bed.
Unless we want to keep turning out the same fights over and over and over for the next 200 years.
Ryan, the story accepts that the Second Amendment exists and has pretty much the meaning that Scalia ascribes to it in Heller. I don’t think that you engaged it here.
*Drug Testing for each and every new firearm purchase or transfer and moderated by a Federally Firearm Licensed Deal with the results sent to the BATF for digital format and held until the firearm is transferred to someone else.
Drug Testing is non discriminatory…..and will save many lives in the process.
If you fail a Firearm Drug Test, you can re-apply in six months.
Well thank God making drugs illegal has kept them off the streets! I sure hope outlawing all but the most rudimentary of guns is at least as effective, boy-oh-boy!
Come to think of it, how often do these mass murderers obtain guns through the local good ol’ boys gun show or their local WalMart? They steal them, they kill others for them, they buy them on the street, but they rarely go through the proper channels that would be controlled by government oversight anyway. You want to address that Dr. Diamond? Or is simply disarming law abiding folks going to fix the mess?
Winships: good idea except…The only drugs that most mass murder types were on have been anti-depressants, and good luck testing for those in today’s world. And half the time the problem is that they are NOT on the meds they are supposed to be taking.
We don’t have a gun problem, we have a bat-shit crazy problem and it is getting worse! How about we expend as much energy on treating those with mental health issues as we do arguing over guns? Because you take guns away and they will use a car to drive into a building, but someone who wants to kill is going to kill.
Those are some finely honed deflection skills.
Actually guns ARE often purchased at gun stores, shows, etc. Semi-automatic weapons can later be modified (illegally in CA) which I believe is what happened, in part, in San Bernardino.
OK, Mrs. Ward: shall we start with the “gun show loophole”?
I’d love to see Republicans propose financing of truly adequate treatment of mental health issues. The way things are now, they’d have to go where the money is to fund it. Know where the money is?
I’d also love it if people could only attempt to kill others by driving into buildings instead of shooting them up. One can pretty easily imagine effective countermeasures to that. No one has tried to drive a car into the White House with intent to kill for a long time.
“No one has tried to drive a car into the White House with intent to kill for a long time.”
Nope, but I’m sure some good folks in Oklahoma might have a thing or two to say about that.
True — 21 years ago!
And did we implement controls on ingredients of ANFO bombs since then? And has it been effective? Yes and yes.
But I do favor your being able to keep and bear a gun in your home for your family’s protection. Just be really careful, because you have kids.
*Cynthia, you are so full of it. How many firearms do you own? Don’t bother to answer. Yes, the bad guys will find ways to use tiddily winks to kill their fellow man. That is way the Nightstalker and hundreds of others kill with impunity. The concept here is simple: Make those jihadists steal their firearms, make them felons to begin with. Right now they are flying under the radar, doing their hash pipes and talking big about the day when they went to the Haj to see places that only Muslims can see. A Law Abiding Citizen….doesn’t steal guns, doesn’t do drugs and wants every other Law Abiding Citizen to do the same. Evidently, you think that American Exceptionalism extends to breaking the law for some people and still giving them “their rights”. BS mam. “Your mouthwash isn’t cutting it.” as Dirty Harry might say. List the prohibited drugs when someone goes to pick up their firearm. Have them take the Litmus Test that offers up their DNA and their drug accountability. If they fail the test, they can come back in six months. Meanwhile, Law Abiding Citizens can still buy their AR-15’s, Extended Magazines and anything else……because they are Legal. Anyone can turn on a dime……but guess what….in the meantime, you catch all the early birds…..
Converting a public right to a public service, then demanding the public perform tribute before receiving services is, well, unamerican.
Points for originality though.
A) None of your damn business. Same answer the Feds get out of me.
B) Still trying to figure out where you got the argument that all these nut cases are on drugs. They are jihadists, and that level of moronic passion is worse than any drug you are going to detect in their systems. Show me the studies or connections between drugs and whackadoodles shooting people en mass. Given how quickly bodies are hitting the pavement these days I would like to focus on real causes we can correct, please.
*Drug Testing for each and every new firearm purchase or transfer and moderated by a Federally Firearm Licensed Dealer with the results sent to the BATF for digital format and held until the firearm is transferred to someone else.
Drug Testing is non discriminatory…..and will save many lives in the process.
If you fail a Firearm Drug Test, you can re-apply in six months.
An analysis of gun violence and mental illness, and the need to go beyond a fact-free ideological debate.
http://www.forbes.com/sites/toddessig/2014/06/28/the-myth-of-mental-illness-and-gun-violence/
*Good Article Richard….thanks.
From the New York Times, the first front-page editorial in 95 years…..
All decent people feel sorrow and righteous fury about the latest slaughter of innocents, in California. Law enforcement and intelligence agencies are searching for motivations, including the vital question of how the murderers might have been connected to international terrorism. That is right and proper.
But motives do not matter to the dead in California, nor did they in Colorado, Oregon, South Carolina, Virginia, Connecticut and far too many other places. The attention and anger of Americans should also be directed at the elected leaders whose job is to keep us safe but who place a higher premium on the money and political power of an industry dedicated to profiting from the unfettered spread of ever more powerful firearms.
It is a moral outrage and a national disgrace that civilians can legally purchase weapons designed specifically to kill people with brutal speed and efficiency. These are weapons of war, barely modified and deliberately marketed as tools of macho vigilantism and even insurrection. America’s elected leaders offer prayers for gun victims and then, callously and without fear of consequence, reject the most basic restrictions on weapons of mass killing, as they did on Thursday. They distract us with arguments about the word terrorism. Let’s be clear: These spree killings are all, in their own ways, acts of terrorism.
Opponents of gun control are saying, as they do after every killing, that no law can unfailingly forestall a specific criminal. That is true. They are talking, many with sincerity, about the constitutional challenges to effective gun regulation. Those challenges exist. They point out that determined killers obtained weapons illegally in places like France, England and Norway that have strict gun laws. Yes, they did.
But at least those countries are trying. The United States is not. Worse, politicians abet would-be killers by creating gun markets for them, and voters allow those politicians to keep their jobs. It is past time to stop talking about halting the spread of firearms, and instead to reduce their number drastically — eliminating some large categories of weapons and ammunition.
It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.
Certain kinds of weapons, like the slightly modified combat rifles used in California, and certain kinds of ammunition, must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up for the good of their fellow citizens.
What better time than during a presidential election to show, at long last, that our nation has retained its sense of decency?
Who originated the latest bullshit “weapons of war” nonsense?
All weapons are weapons of war.
I’m grateful to live in a country that protects freedom of the press. What a shame to see that protection being abused to advocate the erosion of the next amendment in line.
What’s next, the NYT advocating the erosion of our right to be free from government search? To be free from self incrimination? To be free from oppression and lack of due process?
Oh. Right.
The entire reason the second Amendment exists is to preempt a discussion on the need for weapons. As ugly and backwards as that sounds, no American should ever be asked to justify her need or want for freedom.
The NYT doesn’t demand we prove our legitimacy or pureness to advocate our first amendment rights. Why it mocks others who insist on equal treatment concerning our second Amendment rights is not only disturbing; it’s perverse.
The firearms shoots no one by itself. It takes intent or stupid illogical drug intake. Someone will steal a loaf of bread to feed their family, but will not
kill 14 or more people because their imaginary friend might be pleased if they do….(to do a Bill Maher). It matters not how many bullets are in your firearm if that firearm is aimed at you or yours. It can only take one many times to ruin a person entire day or lifetime. Drug testing is the minimal approach to dealing with complete nutcases that don’t know the difference between a muzzle and a trigger.
Sorry, no sympathy for your imagined trampled rights from here.
How come the “well regulated” part of the well regulated militia always gets such short shrift from gun nuts?
There are already limitations on the kinds of arms members of this militia can keep, for example no rocket-propelled grenades. Well maybe in Texas. The point, of course, is that if enough people decide to impose further restrictions on the type of weapons that can be kept by civilians, they can, just as they have. Things change, hence… Amendments.
Being an amateur constitutional scholar doesn’t afford someone freedom from mocking. I’m pretty sure there’s something about that in the Constitution.
If you’d like to advocate a revision to the 2nd Amendment or abolish it completely, be my guest. I’m simply asking that while it exists, you don’t arbitrarily trample it.
Banning RPGs is reasonable.
Addressing the nation and calling for a ban of “weapons of war” is not.
The Constitution deserves better than cheap sloganeering.
What I find absolutely ludicrous is the President calling for patience and cooperation abroad, but openly sows division at home. This isn’t about finding a reasonable solution to a shared problem. It’s about jumping to a conclusion and using propaganda to justify action.
In any case, I didn’t ask for your sympathy or your agreement. There aren’t any gun nuts here. Please don’t attract any.
I couldn’t care less about Obama, or an NYT editorial, or mental health services, and harping on any of them is just diversionary, and impedes talking about the good stuff.
Not a thing needs to be done to the 2nd Amendment, which already provides the necessary latitude to regulate, and to do it well. You may think it’s reasonable to draw the line somewhere just beneath RPGs. I think it should go somewhere rather lower. Let’s try that for a while, say, two generations.
Let’s do some regulatin’!
While you’re free to assume what you’d like, I have never, nor will I, advocated to draw the line just beneath RPGs. That’s your bias, not mine.
That said, regulating the capacity of a magazine to ten bullets vs. eleven or twelve is totally capricious. Particularly since we allow thousands of civilian law enforcement offers to violate this standard daily. If that one, two, or four bullets really made society that much more dangerous and unlivable, we’d make the rule apply to everyone. We don’t, because it’s arbitrary.
Cheers.
“While you’re free to assume what you’d like, I have never, nor will I, advocated to draw the line just beneath RPGs. That’s your bias, not mine.”
I don’t need straw men in such a target rich environment. There’s nothing sacrosanct about where you draw the line. It can be drawn just as easily somewhere else and your not liking it wouldn’t make it unconstitutional, let alone more ‘arbitrary’.
Well, not making a claim is a pretty sure fire way not to get knocked down, right?
Long story short, I’m all for reason in regulation. CA actually does some of this fairly well (safe handling display, handgun test) and some of this poorly (arbitrary handgun list, arbitrary definition of assault rifle, arbitrary magazine size.)
What I’m looking for is an ACTUAL connection to a public safety risk reduction to defend a reasonable infringement of the second Amendment. Unfortunately, we have way too many political rising stars who just want to claim a win on gun control inspire of their own ignorance.
I’ll get off my soapbox now.
“How come the “well regulated” part of the well regulated militia always gets such short shrift ..”
Apparently you are not aware that “well regulated”, in the parlance of the time, referred to “well trained.”
Don’t confuse them with facts.
Also well equipped.
In the parlance of the time, did buying a ticket to a gun show, or ‘not being a felon’ constitute ‘training’?
Ryan, so, so disappointed at the selectivity of your rigor.
. . . unfortunately, that’s not the first time I’ve heard that.
I know, I get enough of that at home.
“Close the gun show loophole,” demands Handgun Control, Inc. The major obstacle to Congress’s complying with HCI’s wishes appears to be the desire of many Democrats to preserve gun shows as a campaign issue. But if the voters learn the facts about gun shows, they will discover that there is no gun show loophole, no gun show crime problem and no reason to adopt federal legislation whose main effect would be to infringe on First and Second Amendment rights.
Cato Institute –
*Folks…please keep the concept if you will. The 1927 Thompson Sub-machine gun was used by Al Capone and a variety of bad guys during prohibition. It was an automatic weapon….pull the trigger and empty 20 or 50 or 100 rounds with one pull. That and the Browning Automatic Rifle 3.06 was also Automatic. Then, we had the Bazooka and later the M-79 and LAW’s, All of which are considered Destructive Devices. They are restricted by the Federal Government and not allowed with a Special Federal Collector or Special Purpose License – (Like for PD’s and other Law Enforcement situations.) This is the meaning of “a well regulated militia”. Otherwise, we could have 15 different types of Hand Grenades and a variety of Smoke Bombs, CN, CS and Flash Bang Gas Grenades along the more effective types which took out the Sibonese Liberation Army and many other barricaded bad guys….throughout the years. Drug Testing is the least invasive of any restrictions. What is your argument against having to pass a Drug Test to see if you are NOT a Law Abiding Citizen …again?
The Fourth and Fifth Amendments.
*Those were great concepts during the Reagan years, then, when George the Elder came in…..those protections went away quickly. You never saw any cops going through people’s cars on the side of the road ….during the Reagan years . Now we have Trump and the Big Brother concept…..coming to a street corner or residence near you ..soon!