The federal statute that preempts various lawsuits against gun manufacturers — passed last week — begins with two interesting items denominated Congressional "findings":
(a) Findings- Congress finds the following:Of course, courts interpreting constitutional provisions are by no means bound by Congress's assertions about the provision's meaning; they may interpret the provision more broadly than Congress urges, or more narrowly. Yet I take it that part of the reason for the findings was that courts sometimes are influenced, at least in some measure, by the judgments of a coordinate branch of the federal government. (At least courts sometimes says that they are thus influenced; query how sincere such assertions are, and to what extent they are just there to support a conclusion that the judges would have reached in any way.)(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
In any event, this reminded me of an item that I wrote about in the National Review Online in December 2002, and that struck me as worth rerunning. Here it is, in case you're interested; and as you read it, you might add an item 3.5, which is “look to what coordinate branches of the federal government have said” — here, look to the Congress’s most recent statements in the new act, as well as in the Firearms Owners Protection of 1986, and the Executive Branch’s most recent statements in the Attorney General’s Memorandum Opinion on the Second Amendment (2004). Note that the argument below does not endorse an “evolving Constitution” approach to interpretation, but just discusses what result I think an evenhanded application of that approach should yield, especially given that all the plausible guideposts — the 1868 views, current public opinion, state constitutional judgments, and coordinate federal branch judgments — point in the same direction.
[Some ask] . . .: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say . . . the Framers [did think] of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?
1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right to bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right to bear arms.
If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that
in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].
Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.
2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in [a 2002] abcnews.com poll . . ., 73 percent took that view, and 20 percent took the states' rights view.
Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a [2002] Freedom Forum First Amendment Center poll . . . found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."
3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.
If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right to bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.
What's more, since 1970, 14 states all across the country have either added a right to bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."
4. So under all these approaches, the right to bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.
"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.
With regards to #1 (what people thought of the 2nd in 1868), isn't that only interesting if it turns out that the 2nd played a substantial part in the debate? In other words, if the 14th amendment were passed without deep consideration of how it would interact with the 2nd, why should we give it any more thought than those who debated it?
(I have no idea if it was debated or not, I'm simply asking about the validity of this frame.)
Or do you believe that "evolving standards" can be read to broaden the security of the Second Amendment given its subsequent interpertation and its public support and because of this lawyers who oppose those guarantees are simply mistaken about where the standards are going?
My personal view is that I think it's wrong as a matter of interpertation to "evolve" Constitutional rights out of existence. When one talks about evolving standards one is really talking about is applying a constitutional right to a new situation or new circumstances. I don't think it's wrong of Second Amendment supporters (and I include myself in that) to address the argument that firepower is a lot stronger now than in the 1791 or 1868.
The bill of rights are absolute prohibitions on what the govt cannot stick their nose in. NONE of the first 10 amendments 'evolve'. That is legalistic crap for, 'I'm smarter than you'.
Does this right invalidate gun registration laws?
Does this right invalidate "no right-to-carry" laws?
Does this right invalidate "gun safety lock" laws?
Does this right prevent prohibition of certain classes of weapons, from the extreme example of nuclear weaponry to the more close questions of fully automatic guns or armor-piercing bullets?
Does this right invalidate mandatory criminal background checks?
Your co-conspirator David Kopel has some pretty "absolutist" views on these subjects. What are your views?
"What then do people mean when they say that 'evolving standards' should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence."
So really I'm asking whether you think the flaw is more fundamental than simply being "disingenuous" about where and how the stanard is evolving. By "not endorsing" a view on "evolving standards" are you really trying to demonstrate that evolving standards is too susceptible to that kind of dishonest, or one might say more neutrally results-oriented, reasoning by using the debate over the Second Amendment?
AnonymouslyYours: I'm trying to do exactly what I said I was doing -- explaining what results a fairly applied "evolving standards" approach should yield as to the right to bear arms. I don't want to go beyond that here, among other things because that would require going into the vast debate about constitutional interpretation about which volumes have been written; I don't have the time to go into that debate now.
Quite a lot of food for thought.
It's an argument that may come back to bite "living Constitution" advocates in the butt if the chimera of the "Constitution in Exile" movement somehow materializes from its current ethereal form.
Why couldn't the text in a state constitution's Bill of Rights assert, rather than secure, a right to the state?
Wouldn't the amendment process take care of any needed evolving standards?
Doesn't the election process reflect evolving standards?
Wouldn't allowing non-permanent elected terms for the Supreme Court allow for the same evolving standards?
Likewise, "arms" have certainly changed. There was previously no 2nd amendmnet right (individual or otherwise) to bear a Colt .45 or a nuclear weapon, but modern social viewpoints must inquire whether one or the other (or both) are "arms" (the problem being that society certainly views nuclear weapons as "arms").
However, the underlying purpose of the amendment itself...for lack of a better description of what's at stake, I shall stick to the not-quite-correct terminology of whether or not to secure an individual or collective right to bear arms, "evolving standards" are irrelevant because this is a baseline question, like whether or not the establishment clause applies to the states, whether a district has been "previously ascertained by law", or whether or not an oath or affirmation is required to obtain a warrant.
REGARDLESS, Professor Volokh consistently uses the wrong test in all of his points. As for the 2nd and 3rd points, the baseline assumption is that evolving standards is a result of the "creeping penumbra" in which (mis)perceptions of the meaning of constitutional rules become reality. This also ignores the fact that the Bill of Rights is for the most part, by definition, anti-democratic. It is that 1st point upon which Eugene's 1st point fails. Without more, how 50.1 percent of Congress viewed the 2nd Amendment cannot sufficiently explain the meaning of the 14th amendment. What Eugene Volokh needs to show is that this view shared by 50.1 percent was likely to also be shared by those that proposed and ratified the 14th amendment....something that, given the difficulty of showing the intent incorporation itself, is going to be incredibly difficult to accomplish.
That Freedman's Bureau document is the best argument you've got. It intended to put guns in the hands of black people to protect them from white mobs. If that ain't an individual right against the majority (which can combine informally into a militia), I don't know what is. I'd also note that if the Constitution regards blacks as not people (at least in its original iteration), then the Freedman's Bureau document is certainly enlarging the Second Amendment in light of the 13th by including former slaves in the population of individuals to whom the entire Bill of Rights applies. You can't argue against such a claim that the right of an ex-slave to bear arms is collective (even if not synonmous with that of other national citizen's collective right), because the point of the 13th AMD was to destory the racial caste system; segregating black gun owners into a caste of gun-owners by treating them collectively would defeat the entire point. Also, saying that the whole nation has collective gun rights would defeat the point of specifically granting the right to ex-slaves, because an all-white militia in the postbellum South certainly would not be defending ex-slaves from pogroms and lynchings. Quite the freakin' opposite!
So my question is this:
That is a very nicely worded argument.
My question to you is this: If the 2nd, through the 14th amendment applies to the state, and the state has its own consitution that specifically protects an "individual" right (specifically the RKBA), how can the state pass a law barring an open carrying of arms?
Stephen
In interpretation, you always start with the text. If the text is not ambiguous, you don't go to history, policy, congressional findings, or anything else. I don't see what's ambiguous about the text of the Second Amendment. It says "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
The preamble states the purpose of the Amendment-- to protect the security of a free state. A well regulated militia, i.e., an armed populace, is necessary to that security. Thus, the right of the people to keep (own) and bear (carry) arms shall not be infringed.
There's no way that can be interpreted as a "collective" right. (Indeed, I don't think there's any such thing as a "collective" right.) It is an individual right that is necessary to serve a collective purpose.
At the same time, "well regulated" secures the government's power to regulate gun ownership. So long as the regulations do not defeat the Amendment's purpose of ensuring an armed populace to protect the security of the state, they are constitutional. Thus, waiting periods, background checks, bans on possession of well-defined, dangerous weapons (e.g., machine guns, weapons of mass destruction), and bans on possession of weapons in certain defined places (e.g., football stadiums, airports) are constitutional. Out and out bans on ownership of weapons, such as the D.C. gun ban, or prohibition of the carrying of arms (e.g., some concealed-carry laws) are unconstitutional.
This isn't that hard. I think that it is precisely that this result satisfies noone that we see these more esoteric appeals to history, policy, and congressional findings for rationales to deny the obvious meaning of these words.
A right to keep and bear Arms means what it says. I get free room and board provided by the government, i.e., "Keep". And the government, through endangered wildlife acts, cannot take away my "bear Arms." They can take away the skins, though, because Congress has the right to raise an army, and we may need to trade those skins to some Injuns to do so in case the French invade from Canada.
Dilan, here's my challenge to you:
It is clear that the collective security from foreign invaders does not require the citizens to have access to handguns any more than it requires them to have access to nuclear weapons. If the city of DC makes a judgment that "handguns" are "well-defined, dangerous weapons", how does your interpretation protect that right (keep in mind that "knives" and "muskets" are both types of weapons).
I think if we are going to suppose that judges might have the hankering to 'update' the constitution, that they might have to consider 'updating' the following parts of the constitution first?
Article. I. Section 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article. III. Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
From a purely logical perspective, is this an argument IN FAVOR of an individual right to bear arms, or an argument AGAINST it?
It seems to me if you have 49 laws saying "individual right" and 1 law saying "wishy washy pseudo-non-sequitur militia stuff", isn't the best interpretation that the one law that is different means something different that the 49 that are the same?
Put another way, the argument is, "People knew how to say 'individual right' when they meant it. Here, they didn't say it, therefore they didn't mean it."
While some of your arguments seem somewhat forceful, this one seems somewhat of an orphan.
While I am not at all convinced, as a policy matter, that the DC residents owning guns is necessary for collective security, the framers already made that conclusion. (I should mention that I AM convinced that DC residents owning guns is quite important to their own safety and the safety of their families.) We have to take it as a given that a well-regulated militia is necessary to the security of a free state, because that's what the text says.
So the question becomes, would a total ban on handguns in a major American city serve the purpose of having the armed populace that the framers envisioned would be necessary to the security of the state. I think the answer is pretty obviously "no", once you take as a given that they thought the populace needed to be armed. Handguns are inexpensive, easily stored, and more effective than shotguns. They are also quite useful for an individual in combat. In contrast, a nuclear weapon, for instance, is none of those things.
I realize there are close calls with respect to some categories of weapons. And on those issues, history isn't going to help us out much anyway, because the framers were drafting the provision in an era of shotguns and muskets. But that doesn't mean only shotguns and muskets are protected-- where they have stated the purpose in the text, you have to try to discern the relationship between the purpose and the regulation at issue (just as a court interpreting the Fourth Amendment's application to a new technology such as thermal imaging relates that technology to the interest in preserving the privacy and sanctity of the home that the provision is intended to serve).
I don't say that all the potential cases are simple. But the MEANING of the Second Amendment IS simple. It confers an individual right that is subject to reasonable regulations. It just happens that nobody-- not the extreme gun controllers nor the NRA-- really likes that result.
State constitutions also specify things like freedom of speech and of the press. What's your point?
You don't like a constitutional right...? No problem! Just evolve it out of existence!
You've finally found a credible argument for Intelligent Design over Evolution!
And everyone, please no more nonsense about the Second Amendment and nuclear weapons. Bombs, cannon and the like were classified as "ordnance" when the Constitution was drafted, and were not included in the Amendment.
I thought it was to limit -and thus to an extent, define- the power of the sovreign being created, securing rights to the [people, state, whatever is next in the hierarchy] and powers to the state?
I the latter is less true in light of enumeration/delegation-type provisions.
Please read the relevant commentary on what "well-regulated" means. It does not, if fact, refer to regulations as in laws, etc., but refers to the practice and drill required to have an efficient and disciplined fighting force.
A right to keep and bear Arms means what it says. I get free room and board provided by the government, i.e., "Keep". And the government, through endangered wildlife acts, cannot take away my "bear Arms." They can take away the skins, though, because Congress has the right to raise an army, and we may need to trade those skins to some Injuns to do so in case the French invade from Canada.
I don't believe that state, city or county governments should have any rights to further restrict this right. If your right is subject to the whim of a city government, you have no right at all.
We don't allow state, county or city governments to regulate any of our other rights.
Unlike the 1st Amendment, it doesn't limit its application to one level of government.
The Bill of Rights, by its terms, indicates that it binds the states also, speaking of (10th) powers retained by the states and the people, if the Constitution doesn't forbid them from having that power.
As far as "where do you draw the line", I don't see that we need to have some kind of overarching principle as our only guide. Compare gun laws to laws regarding speech. The right to free speech is as guaranteed as the right to bear arms, and yet there are plenty of laws against speech crimes - libel, "clear and present danger"ous speech, sexual harrassment even. You won't find the justification for any of those exceptions -anywhere- in the First Amendment, yet most of 'em are a good idea. Same with gun laws - we have a pretty effective body of law to determine which arms may be borne and under what circumstances. In both areas of law, there are areas of overreach (sexual harrassment law, campaign finance law, versus DC gun ban), but you can't conclude that because the absolute position is flawed, that any restriction is thus all right.
Under that kind of analysis, registration would probably be permissible from a constitutional perspective. But at the same time, I absolutely see why gun-rights advocates are opposed to it; in an environment where the right itself is under assault, anything that makes confiscation easier is a bad idea, and nothing would make it easier than a big registry of where all the law-abiding owners keep their guns.
First: "Congress shall . . . "
" . . . the right of the People . . . "
Second: " . . . the right of the People . . . "
Fourth: " . . . the right of the People . . . "
Seventh: " . . . any court of the United States . . . "
It looks to me like the Framers knew how to distinguish between limitations on the power of the federal government and generic "rights of the people" against any government.
I like what I've read from Justin and Dilan Esper.
I apologize in advance for this question; my intention is not to slow the debate but to open it to those of us who aren't constitutional scholars.
People with views interpret the constitution. They can be originalists, texturalists or evolving standards...whether progressive or regressive...depending on your point of view. Justin made a great point regarding the Colt 45.
Shouldn't an originalist, like Scalia and Thomas, feel obligated to restrict any gun other than those in production at the time the amendment was passed?
There's both an interpretative objection to your argument and a substantive objection.
The interpretative objection is that you can't go to the history when the text is clear. "Well-regulated" has a clear meaning, and it's not drills, etc. You have to give words their ORDINARY meaning, unless it is clear that some technical meaning is called for. This is Statutory Construction 101.
The substantive objection is that it is completely unreasonable that the framers would prattle on about drills in the Constitution, or that they would feel that they had to put language in the document to ensure the government's power to drill the troops. That's a silly, make-weight interpretation conjured up by people who don't like gun regulation.
Further, even if "well-regulated" did mean drills in 1789, that doesn't mean that it EXCLUDED other potential regulations of the militia. To pick one that might be somewhat relevant (if we have to get into history), do you believe the framers would have said that the government has no right to ASSIGN weapons to the members of the militia, e.g., "you take this musket, you over there with the good eye, be the lookout and use this rifle with the sight on it"? Isn't that part of "well-regulated" just like drills would be? And if so, why is the modern day equivalent of that— "you can have this weapon but not that one"— constitutional?
Really, again, I don't think that "drills" is serious constitutional interpretation.
Alan:
I believe Barron v. City of Baltimore (a pre-14th Amendment case) held that the entire Bill of Rights was only intended to bind the federal government. Whether or not that was rightly decided, the Supreme Court saw no distinction between the First Amendment's invocation of Congress and the other provisions.
I am not criticizing gun rights advocates for advocating minimal or no gun regulation. I just don't think that is constitutionally required, given the actual text of the Second Amendment. What is constitutionally prohibited is gun prohibition, or regulations that impinge on the intention that there be an armed populace.
I do think, at some point, there may be a "grand bargain" on the registration issue, because I agree with you that gun rights advocates are not irrational to oppose registration in a climate where even prohibition would probably be upheld by the courts (because of the stupid "collective right" doctrine). The grand bargain would be that the Second Amendment is itself amended to make clear that it confers an individual right, and in that context, that the government will obtain greater powers to keep track of firearms for the purpose of solving crimes. (Whether this takes the form of bullet tracing, registration, or something else, I don't know.) I think that such a bargain could probably obtain the support of a majority of the populace, though both the NRA and Handgun Control, Inc. would be dissatisfied with it.
Excuse me, but "well-regulated" has a simple, ordinary meaning. It is the same as "well-ordered." Nobody would say "the banking industry is well regulated" to mean either "the OCC and the Fed do a really good job," or "the banking industry is heavily regulated." It does not refer to the kind of thing you find in the CFR. Do not confuse "well-regulated" with "regulation." I'm not even sure "regulation" in the CFR sense was even a word in 1791. It's true that at least since the early 20th century most armies have had Field Regulations. However, those cover organization, armament, doctrine, and tactics. Being properly armed is a part of being "well-regulated."
What's the name of that old clock company again? I don't think it means the clock makes rules.
Almost certainly not. Of course, because Haynes v. U.S. (1968) exempts convicted felons from punishment for failure to register (Fifth Amendment protection against self-incrimination), what's the point?
Many state supreme courts have taken the view that the RKBA requires that at least open carry must be allowed, if concealed carry is prohibited. For example, Idaho's Supreme Court in In re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902) ruled that a city ban on all carrying of deadly weapons violated both the Idaho RKBA, and the Second Amendment. A minority of state supreme courts have ruled that even concealed carry couldn't be prohibited. Kentucky's Supreme Court in Bliss v. Commonwealth (1822) struck down a ban on concealed carry because it contradicted the state's RKBA clause. Vermont's Supreme Court in State v. Rosenthal (1903) struck down a Rutland city ordinance banning carrying of firearms for being contrary to the state constitution's RKBA, because it banned all carry.
Probably not. There are a number of firearms laws in 1791 intended to protect public safety, such as state laws and city ordinances limiting the amount of gunpowder that you could store in your home, and of course, laws that required you to carry a gun when you were away from home were pretty common in the colonial period, as well as laws requiring to bring your guns to church. These were justified as public safety measures. Visit here to see more of these you could ever have imagined.
I don't find any basis to argue that nuclear weapons were contemplated or envisioned by the Framers--there is a scale of difference that makes even the most feared weapon of the day--an armed vessel--seem puny. But there isn't a common modern small arm that was outside the imagination of the Framers.
Highly concealable pistols? Sure. I've held Paul Revere's pocket pistol--and it is tiny. Repeating handguns? They had them--although they were less reliable and less safe than modern pistols. Automatic weapons? There is a 1709 English patent for something that bears an uncanny resemblance to the Gatling gun. Sniper rifles? The Pennslyvania Committee of Safety in 1776 directed letting of a contract for a "wall gun" with a telescopic sight.
Significantly, the federal government has not banned private possession of full automatic weapons. They do have a relatively complex regulatory scheme, but actual bans are strictly state matters. A number of states have no machine gun regulation whatsoever, because the federal system is adequate. Even proponents of the National Firearms Act of 1934, which first regulated machine guns, recognized that there was a Second Amendment question if the federal government enacted a ban on private ownership. Attorney General Cummings was asking for this new law, but he explained that the regulatory matter was done through a tax stamp and registration because: Quite a number of regulatory measures are constitutional to keep guns out of the hands of the insane, the criminal, and minors, but a measure whose primary purpose is to disarm the masses isn't going to fly.
No, because the notion that a person might lose the right to have a gun for criminal actions wasn't new in 1776. There are a number of colonial examples. Revolutionary governments confiscated guns from people who were Loyalists--although they were careful to compensate them for guns taken for public purposes, and other guns were supposed to be returned to the Loyalists after the war.
Having a properly armed citizenry is the purpose of the Second Amendment. But your discourse on "regulated" is, with all due respect, bunk. "Regulate" comes from the Latin "regula", meaning a rule. The word first appeared in English in the 15th Century, meaning, to govern or direct according to rule, or to bring under the control of law or constitued authority. The sense of the word meaning "ordered" is the one that came later-- a metaphorical usage that essentially meant "as if according to rule".
Further, your statement that the words "well regulated" could not mean either that the regulatory agencies do not do a good job or that the regulation is heavy is completely incorrect-- both the usages you posit actually make perfect sense.
Finally, I think the clincher is what "well regulated" means in the sense of a militia. A militia, after all, is a military organization. Military organizations have had rules and regulations since time immemorial, including, specifically, what arms the soldiers could carry. If your Commander in the militia in 1776 ordered you to carry a musket rather than to operate a cannon, I am quite sure you were required to obey the order. Thus, it is PERFECTLY clear that when one says a "well regulated militia", one is referring to a militia which is subject to rules and regulations that the members of the militia were required to obey.
The preamble also makes the most sense given this interpretation. After all, a well regulated militia quite plausibly is necessary to the security of a free state. A poorly regulated militia, or an unregulated one, may well be antithetical to that security.
Again, I think these arguments are make-weights. The most vociferous pro-gun advocates HATE the "well regulated" language, so they try to read it out of the Amendment with creative interpretations that ignore the ordinary meaning of the word. Just the same thing that gun control advocates do with the words "right of the people".
Excellent post. I don't agree with you about all the particulars, but you have clearly thought about the issue of what sorts of regulations would be permissible under the Second Amendment. That is, I believe, exactly the sort of inquiry that is required by the Amendment, rather than the blithe assumption that the Second Amendment never applies, or in contrast, never permits any regulation of gun owernership.
The Second Amendment was originally three independent clauses; one that held that the best security of a free state was a militia; one that guaranteed "the right of the people to keep and bear arms"; and a third that guaranteed the right of those "religiously scrupulous of bearing arms" that they wouldn't be required to do so. The third clause was knocked out in committee out of fear that lazy people would declare themselves "religiously scrupulous" to get out of militia duty. The editing job took out the semicolon. My book has a detailed, blow by blow description of what happened.
Much of the dispute is about whether particular laws make sense. Some are clearly constitutional, but stupid. Some people who haven't thought this through may call a proposed law unconstitutional when they really mean, "This isn't going to do any good."
I have a lot more about this in my book For the Defense of Themselves and the State. Kohn's book Eagle and Sword examines these disputes in great detail, as does my upcoming book Armed America. (My agent is still negotiating the contract with the publisher, but current plans are to have it out next September.)
Your posts here have been very interesting. I do have a few questions though regarding your contention that a variety of regulations are/would be constitutional. You state that we need to take as given that a militia is necessary to national security, and rightly so. It would seem to me then that any regulation that pulls the teeth from said militia would then be unconstitutional. Nuclear weapons are obviously not a good discussion topic, but smaller things like grenades, grenade launchers, LAWs, field mortars, automatic weapons, etc. would all obviously be necessary to a functioning militia. Basically I don't see how you can see as constitutional any provsion that prohibits something that would be available to a modern light infantry outfit. Obviously this could be disasterous if it were allowed, but by not ammending the constitution till this point it seems as if we have gotten ourself in a jam.
I used to think that it was true that nobody seriously thought that the Second Amendment was absolute. But in the past few years on the Internet, I've run into quite a few such persons, as well as persons who refuse to admit that the Amendment itself permits some regulation and simply define themselves out of the tough issues. (See above comments, for instance, about how nuclear weapons are not arms, and how the Second Amendment gives you a right to have a cannon.)
I think there's a great fear of the reasonable regulation issue among at least some gun advocates, either because they really hold extreme views about what sorts of arms we should be able to have, or, more likely, because they have perfectly valid slippery slope concerns about conceding any limitations on the right to bear arms. (Your post itself indicates quite plausibly how, for instance, the rationale for disarming felons can also arguably justify background checks and even gun registration.)
The fact is, it is one of the great crimes of modern constitutional intrepretation that the courts have been unwilling to recognize the Second Amendment's clear protection of the right to bear arms. But I do think there are plenty of people who would at least like to believe that when that wrong is rectified, it will mean that all the regulations that they don't like will suddenly be swept away, and I doubt that will be the case.
Throughout the period between the end of the Revolution and about 1800, there was a major conflict underway between two differing schools. One said that standing armies were dangerous to a republic, because of the danger that the President might make himself king.
That's interesting; I thought the argument was that the army leaders themselves would overthrow the civilian government. I'd never heard it mentioned that the Framers were worried about the President himself taking over the whole thing. Geez, did these guys have any historical precedents besides late Republican Rome?
You have to distinguish between what the militia collectively can hold and what the individuals in the militia need to keep and bear. (And remember, "bear" and "keep" are two different things.) There are all sorts of weapons (and were all sorts of weapons even in 1791) that the collective militia-- or other form of military organization-- should have, but which can be restricted from individual members of the militia without the purpose of an armed populace ready to defend the free state suffering. Many of those weapons are weapons that an individual cannot plausibly "bear" on his or her person.
Again, those sorts of regulations fall within the scope of a well regulated militia. What doesn't fall within that scope is disarming the populace-- THAT'S what the Second Amendment clearly bars the government from doing.
Hand grenades are for sale in Philadelphia in 1783. I've found ads offering them, and Boston's 1786 firearms safety ordinance, designed to keep people from leaving loaded firearms in unoccupied dwellings (fire hazard) has an impressive list of weapons that apparently were lawful to own: "fire-arms, or any bomb, granade, or other shell... in any house, outhouse, barn, stable, store, ware-house, shop, or other building...." Other sections apply this to "cannon, swivels, mortars" and other military ordnance, and prohibit bringing any loaded gun into a building. Here's an article that may interest you about gun safety regulation of the time.
Tanks? Nothing equivalent back then. ICBMs? Nothing equivalent, and not even in their imagination.
If you want to buy into the "only muskets are protected by the Second Amendment," explain why freedom of speech and of the press applies to any technology more advanced than standing on a soapbox, or a true printing PRESS.
However, I believe that it was not uncommon prior to the Civil War for individuals of significant means to own cannons.
The fact that it was permitted does not mean it could not be prohibited. Are you aware of any pre-Civil War court cases that struck down restrictions on such cannon?
Fran:
Shouldn't an originalist, like Scalia and Thomas, feel obligated to restrict any gun other than those in production at the time the amendment was passed?
Just as they are obligated by the First Amendment to restrict any words other than those in dictionaries at the time it was passed?
I think this is perfectly consistent with any interpretation of the Second Amendment other than the "collective right" interpretation.
Are the NRA's lawyers that incompetent ?
I'm not sure how persuasive that is. How many amendments in the Bill of Rights have a "preamble"? The First Amendment doesn't begin, "Because a free press is really important..."; the Third Amendment didn't say, "Boy, didn't you hate it when the British put soldiers in your house? We did too. Therefore..." Is there a historical basis for the argument that the Second Amendment alone has a preamble?
(There's a title for your article by the way-- "Gun Rights Optimists Say It's Half Empty: Why There Is No Legal Meaning to the 'Well Regulated Militia'" Language in the Second Amendment)
Geez, did these guys have any historical precedents besides late Republican Rome?
They didn't have to think back any further than Cromwell. Certainly the executive's power was their chief concern; arguably the executive therefore ended up being too weak until the Civil War.
For instance, as I mentioned before, to determine whether thermal imaging of people's homes is a search under the Fourth Amendment, you have to look at the sorts of invasions (especially home invasions) that the provision was meant to restrict.
To determine whether the use of lethal injection is a cruel and unusual punishment, you have to compare it to the types of punishment that the framers were meaning to bar. (You also can consider evolving standards of decency, if you believe that the clause was intended to reflect contemporary standards and not simply those in place at the time it was drafted.)
As Clayton notes, you look at the purpose of the First Amendment-- free expression of ideas-- in determining that new technologies are part of the "press" and "speech" just as the printing press was.
Similarly, it's not rocket science to determine if ICBM's are protected by the right to bear arms. (Sorry about the bad pun.) The framers were very clear about their purpose-- to have an armed populace, because one was necessary to the security of a free state. There's nothing in that language that would indicate that anything goes, and indeed, the words "well regulated" indicate that anything did not go. Further, the provision was clearly talking about arms that one would "keep and bear"-- language that doesn't seem particularly applicable to a gigantic missile that one would need a huge truck to move.
These things are usually a matter of common sense. There are some close calls with respect to weapons that one may plausibly "keep and bear", but which the government contends individual possession of which is not necessary to the security of the free state. But this is no different than many constitutional provisions-- you have a clear core meaning, and then some tough cases that straddle the line.
There's a more positive side to this. From a blog entry a while back:
Organization of the Militia
In looking through American State Papers: Military Affairs, I found a very interesting 1790 report titled Organization of the Militia (starting here) by Secretary of War Henry Knox. President Washington sent it on to the Congress to assist them in developing a federal militia law. It captures well the view tht people like Washington and Knox had about the milita. This excerpt is from page 7:
This is a report authored by Secretary of War Henry Knox in the Washington Administration--and these are generally considered among the stronger advocates of a standing army.
One example of a provision in the Constitution with a preamble is the Copyright and Patent Clause, which states that the purpose of the Congressional power to grant copyrights and patents is to "promote the progress of science and the useful arts".
This preamble has been used as an interpretative device in many cases. For instance, before Congress passed a statute in 1976 codifying the doctrine, the fair use of copyrighted material was justified, in part, on the premise that restrictions on such use would not promote the progress of science and the useful arts but rather retard it by depriving the public of uses of copyrighted material that would enrich public knowledge.
Similarly, the doctrines of copyright and patent misuse are premised on the idea that where intellectual property rights are used in a fashion that causes regress rather than progress in science or the useful arts, they may be restricted.
I am sure there are other examples of preambles in constitutional provisions, but that is the one I could think of off the top of my head.
Gadzooks, he's right! It's a good thing SCOTUS always gets out in front of these issues and issues rulings before the lower courts do, and before states pass problematic laws.
And if you think this is excessive, wait 'til we get started on the Third Amendment!
One thing that's very clear: that part of the now expired 1994 "Assault Weapons" ban that prohibited civilian possession of new "military-style" semi-automatic rifles and pistols with standard-capacity ammo magazines was straight-up unconstitutional.
Are you aware of any pre-Civl War laws that restricted private cannon ownership?
No, but that's irrelevant to my point. I don't think cannon were "arms" under the Second Amendment, but the fact they could be prohibited doesn't mean they actually were. You could constitutionally prohibit driving SUVs in interstate commerce, but the lack of laws doing so proves nothing.
That said, maybe I'm wrong and cannon are in fact "arms". I'm fine with that; what's your view (which I know is more informed)?
Before ?
I only brought it up because Cromwell seems more the former than the latter. Maybe the distinction isn't that great in practice.
Of course, even if we all agree that first clause should be Taken Seriously, it's far from clear how much, if at all, that changes the end result of what kinds of regulations are and are not unconstitutional.
I was thinking more of the later Cromwell, though admittedly it's not a clear-cut distinction.
The fact is that throughout the history of gun control, our side wins a lot of battles at trial, and on appeal--and the really sympathetic defendants seldom make it to the Supreme Court. In U.S. v. Miller (1939), the defendant (who wasn't terribly sympathetic) wasn't even represented--the Solicitor General was doing a direct appeal from U.S. District Court, where the judge had ruled that the National Firearms Act of 1934 was a violation of the Second Amendment.
There's a sequence of events needed here.
First get the Supreme Court to make an unambiguous statement that the Second Amendment protects an individual right against federal violation, perhaps even finding that a particular law is "reasonable regulation," such as in USA v. Emerson (5th Cir. 2001).
Second, get them to strike down a federal law as unconstitutional. I would argue that the ban on loaded firearms in National Parks is a good candidate. (If you don't see the wisdom in striking down that law, think "Yellowstone grizzly bear.")
Third, bring them a case under state law, and get them to find it is incorporated under the Fourteenth Amendment--although that would require them to admit that "privileges and immunities" really did mean something. A good candidate might be California's current discretionary concealed handgun law, originally adopted as part of a 1923 law for which the stated purpose was disarming Chinese and "Latins."
First, nice play on Ron Dworkin by capitalizing "Taken Seriously".
Second, I think preambles are very important, in the Constitution and in statutes, because they are a form of "legislative intent" that, unlike other forms of history, was actually agreed to by all of the framers.
As an example, the First Amendment we have makes no textual distinction between political and other types of speech. But imagine, instead, a First Amendment that read "The free exchange of political ideas being necessary to the survival of a free state, Congress shall make no law abridging the freedom of speech." I think that if that were what the provision said, courts would probably be less protective of artistic, erotic, or other non-political forms of expression than they are now. In contrast, if the text read "The absolute unrestricted right to say or otherwise express anything one wants to express, on any subject matter, being an inalienable individual right that is not subject to derogation by the state under any circumstances, even in the case where harm comes to another person as a result of such speech, Congress shall make no law abridging the freedom of speech", that provision would probably be interpreted to confer an even broader right of free expression than the First Amendment is interpreted as conferring.
Any time you have a legislative body (including the Constitutional Convention) expressing itself in the text regarding its intentions, that has to be taken seriously.
Thanks, Clayton. I'll try to find it. You also dealt with the drafting evolution of the Second Amendment-- can you explain why it has the only legally meaningless clause in the Bill of Rights?
(Again, it's far from clear that deciding that the first clause is really really important produces a different outcome re Constitutionality...)
My point is that unless we can find a clear statement that X was prohibited, and X was present or known, we probably have to assume that X was recognized as a right. In some cases, we can find laws but they are not relevant anymore. Laws disarming slaves are common--but we don't have slaves anymore. Laws disarming free blacks seem, to my surprise, not to be present in 1791, even in the Southern states, which leads to some interesting challenges in the the 1840s in the southern state supreme courts, when free blacks challenge post-Revolutionary ed laws requiring them to get a license to own guns.
The provisions requested by the states come in two large categories: clearly individual RKBA provisions, such as Virginia and New Hampshire; and guarantees that Congress's authority to keep a standing army would be limited. Some states requested that Congress be prohibited from keeping a standing army in peacetime, except with 2/3 vote of both houses. More often, these are "this is a good idea to rely on the militia" statements--with no real legally enforceable component.
Finally, to make the Quakers and other pacifist sects happy, Madison proposed a conscientious objector provision for militia duty.
Remember that most members of Congress thought this whole Bill of Rights matter was a bit of a waste of time, and even Madison was doing it primarily because he had promised the voters that he would lead such an effort if elected. Most Congressmen were doing it because several states had said, "We really want a Bill of Rights." At least two states had not yet ratified: North Carolina, and Rhode Island. While the RKBA wasn't the reason, both states when they did finally ratify included RKBA requests in a Bill of Rights.
There's considerable debate about the "well-regulated militia" part; and about the "religiously scrupulous of bearing arms" part--and almost no discussion at all about "right of the people to keep and bear arms." This was a formulation that appeared in a number of state constitutions of the era, where it is usually explicitly individual in nature (Pennsylvania's 1776 Constitution), and sometimes explicitly collective (Massachusetts, for example).
And let's have no more appeals to "common sense" - clearly it's not common (as in, shared with others), when even the eighteenth century concept of "well-regulated" causes some of us sophisticated moderns so much confusion.
You don't have to look too hard to find someone who thinks all regulation of arms is constitutionally prohibited. well let me clarify that - all prior restraint based restrictions on arms is constitutionally prohibited. All you have to do is look me up. :)
First a touchy area - what constitutes arms? I think we can agree that arms capable of being carried &used by an individual generally have some military utility &would fall under the decision in Miller (after all, what small arms could not be useful to a militia in its proper role?) but i should point out that there was an 18th century equivilent to tanks - it just operated on the seas rather than land. The ocnstitution states that congress can issue letters or marque &reprisal. That seems ot me to be an implicit admission that armed vessels were in private hands &no one was terribly bothered by it. To have any chance of executing a letter of marque those privately owned ships would have ot have, among other thing, some serious cannon. Now cannon may be operated by an individual (though they're best employed by a crew) it'd be folly to assume that even a strong man could transport one without the aid of some sort of transport (like a team of mules) or a ship. &looking at the latger picture, the heavily armed ship cannot be captained by a single person.
So personally I'd be alright with saying that only arms capable of being operated by an individual for use discrimnatly against another individual are protected under the 2nd amendment. But being honest I'd concede that there is a good argument for crew served weaponry in private hands.
Besides, it's legal to own a tank now- you just have ot jump through some hoops to have its gun operational.
Getting to DE's main focus - "well regulated" simply means that - regulated to an effecient purpose. On policy grounds I'd argue that registration, background checks &other prior restraint based laws concerning possession were not conduscive to the proper end, but I don't need to go there.
The first part of the 2nd amendment confers no power tot he feds at all. It merely explains the purpose of the second part. Prof. Volokh discussed this before &explained it as an explanatory cluase followed by an operative clause. If anything it implies that proper regulation of the militia is essential, but that does not exlictly or implicitly make the individual subject to "reasonable" gun control laws.
It's not that the absolutists won't look at or acknowledge the first part of the 2nd amendment, it's just that we won't give it weight where none is due. It is strictly there to explain the purpose of the guarantee that every person will be secure in having their own arms, not to justify or except any part of said right.
But in general, especially at the federal level, no prior restraint based gun control (bans on possession, background checks, restrictions to possession, etc...) passes constitutional muster. At the least they tend ot have a chilling effect or the potential for an infringement, &at most they prohibit a person's excericise of the right to arms.
Whether this is good policy or not (for example allowing violent ex-cons to buy belt fed machine guns) is debatable, but if it's not a good policy then we need to change the amendment, not say that the framers coudn't have meant what they wrote.
This doesn't argue well for a state's putting much faith in its citizens' capacity for self government and, unsurprisingly, gun control is at its strongest in 'nanny' states.
The real purpose of the Second Amendment is to ensure the Sovereign -- the people -- the power to remove an insubordinate government. It is a reminder to both the people and the state of who is boss, which is why it is disliked both by ambitious states and timid citizens.
My point is simply that if all the state Constitutions said it protects the freedom of "speech and other expressive conduct," but the Federal constitution only protected "speech," that would be an argument that "speech" does not include "expressive conduct."
Similarly, if the state Constitutions all protect "an individual's right to bear arms," and the federal Constitution protects "the right to bear arms", that is evidence that the federal government does NOT protect an individual right.
Not conclusive proof, of course, but I would weight it in the "against" column. Prof. Volokh has weighed it in the "pro" column, which I don't think is logically correct.
You are contradicting yourself. If the preamble is "explanatory", then it can't be true that no "weight" is "due" it. We very rarely get explanations from legislatures as to what they intend to do (as opposed to more ephemeral estimations of intent such as committee reports and historical usage of terms), so when we do get them, we should use them.
They are explaining the right to keep and bear arms by placing it within the concept of securing the free state. I think we agree on that. But they are also explaining the right to keep and bear arms by placing it within the concept of a "well regulated" militia. I find all these historical assertions about how "regulated" doesn't mean anything to be quite artificial. As I said above, the concept of a militia, by its very nature, involves regulation through a structure of command. (I might also add that in the American constitutional context, it is bound by the rules set by the legislature as well. See Art. I Section 8— Congress has the power to make rules for captures on land and water.) Everyone knows what a well regulated militia means— a lot of folks just won't admit it because they don't like the meaning.
Let me give you some other examples of "well regulated" that show your position that the words are meaningless or carry no interpretative force is without merit. I have already mentioned military commands. It is quite clear that if you don't carry the weapon that the commander orders you to carry, or carry a weapon he tells someone else to carry, you can be constitutionally punished.
Another is rules of capture, as mentioned above. Congress has the e