Does the Militia Preface Qualify the Right to Keep and Bear Arms?
In light of the question presented in The District of Columbia v. Heller now pending in the Supreme Court, I have updated the SSSN version of my article, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, so you can now download the final version as it appeared in the Texas Law Review (suitable for citing!). Download it here. Here is the abstract:
Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.
"Well-educated civil servants being necessary to good govt, the right of the people to own and read books shall not be infringed."
That amendment would be interpreted no differently than the relevant parts of the first are today.
Conclusion: "I like porn but not guns" is basically the theory of constitutional interpretation used by the "it's only for the militia" folks.
In an updated version might read "A well regulated Army, being necessary to the security of a free State, the right of the soldiers to keep and bear Arms, shall not be infringed."
Why go through the trouble?
Dale
So it would seem to be a moot point as far as current statutes are concerned. Current statutes can be changed, though, without Constitutional amendment.
And women should be allowed to possess guns anyway.
"Militia" is not an archaic term for "army."
One reason for having that language is that the Second Amendment was intended to prevent the federal government from disarming militias set up by state governments. This would fit with the general purpose of the Constitution, which was to define a relationship between the federal government (which had certain specific powers) and state governments (which could generally do whatever they liked so long as it wasn't specifically prohibited by the Constitution [or their state constitutions]).
This is what the authors of the 2nd wanted to prevent. The government would need well-armed and well-organized men to provide security, to suppress insurrections, to repel invasions, and to enforce the law. But the authors of the 2nd wanted these armed men to qualify as a militia, which meant that they couldn't be better armed than was possible for private citizens. So to ensure that the militia was well enough armed to do its job - yet not so well armed as to be disqualified as a militia - the people were guaranteed the right to keep and bear arms.
Crackmonkeyjr, thanks. That helps some. Somehow or another I'd gotten it into my head that the states have the right to form their own militia. Checks and balances and all that stuff. So it didn't make sense that one would worry about the feds disarming a state's militia.
I'm assuming from your comment that they don't. I quickly searched the Constitution for the word "militia" and didn't find where the states have a right for form one.
Thanks,
Dale
So the founding fathers have condemned us to centuries of controversy.
I read it to mean a militia is an army formed by citizens in case of emergency or tyranny. So, citizens, in order to populate this army would need to have at their disposal the necessary weaponry. Otherwise the States would have to keep armories for such weaponry. We can all see how an armory would be a poor choice of storing weapons to be used at the most important times.
The Constitution doesn't grant any 'rights' to the States. The Constitution grants powers to the federal govt. Anything not listed as a Power of the Fredral Govt is reserved to the States, and through them, to the People. The purpose of the Constitution was to limit the powers of the federal gov't, not to limit the states.
Respectfully,
Pol
If that were the intention, why did the amendment reserve the right specifically for 'the people', and not the states? Moreover why wasnt it placed in Article IV with the rest of the States issues?
Instead it is smack in the middle of liberties guarunteed to individuals.
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.13
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees.
That argument just has the same problem as discussed by Adam above. The Second Amendment is unique among the amendments in the Bill of Rights in that it has what could be characterized as a "preamble". This creates a presumption under most approaches to constitutional interpretation that the "preamble" is intended to modify or limit the subsequent language, otherwise the preamble becomes "surplusage," which is usually disfavored. Attempts to create analogies to the First Amendment therefore fail because the First Amendment does not contain such a "preamble". If it had contained one then the Supreme Court might very well have construed First Amendment rights more narrowly than it has.
Meaningless (or nearly so) in light of current interpretation of the Commerce Clause - [he sniped]
Unfortunately, today, if a citizen takes this duty seriously and acquires his or her "weapon of the kind in use at the time" and the ammunition to go with it, he or she will be out at least a few thousand dollars, not to mention the practice time, cleaning time, assembly and reassembly time, etc. Time is money these days. This I propose is no small price to pay, which may be why Justice Story commented / warned against the people's loss for the taste of performing their own militia duty.
But, I have to say I also agree with William Rawle (1823) and Justice Thomas Cooley (1880), that the "shall not be infringed" applies to both the Federal and State governments.
To paraphrase Cooley: How can the people of a state be a check on their own state government if the state government can disarm them by neglecting their militia responsibilities and failing to properly arm the state militia? Couldn't a corrupt state government disarm its own citizens by failing to properly arm the militia? No, says Cooley, because the right falls to the people, not to the state.
I apologize if I have written too much.
...and the 'militia' argument analog is that the existence of government schools obviates the need for - and therefore the right to - the private ownership and reading of books.
This is very problematic from an originalist POV. A great many people of the time saw the BoR as imposing structural limitations on the new federal government. The 2d A lends itself to this view, as crackmonkeyjr pointed out.
Any attempt to tie the Second Amendment to a military force fails in that every sovereign state has the power to raise, equip and maintain military forces, and this is mentioned elsewhere in the Constitution. Unless we are willing to believe that the Founders had no idea of such powers, the Second Amendment, as statuatory justification for the arming of a militia, makes less than no sense.
----
I'm not an attorney, but "modify or limit" surely isn't the only justification for a preamble. What about "clarify, justify, and explain"? One could argue that the Founder's took the 2nd amendment especially seriously, because they wanted, with a preamble, to explain why the general right was so important. Otherwise, for goodness sakes, future generations might think it had something to do with hunting...
Skyler, I am aware of that. My point is if the 2nd is meant to be read as addressing the states why wasnt it included in the Article IV where it belongs, instead of in the midst of delineated individual rights? Now you might argue that it was tacked on as an amendment later because nobody thought of it when the original constitution was drafted, but if that were the case there would certainly be scholarship to confirm it. At the least it would certainly have been placed with the 9th and 10th amendments, and even that wouldnt explain why it references 'the people'.
Essentially the idea that the 2nd amendment provides a state right is incoherent in the context we find it (nevermind the scholarship of the day, which amply confirms this).
And,
And,
Finally,
If you're a "collective argument" person, history and facts are not on your side.
Well not really. The 3rd amendment limits the military's right to expropriate private property, even temporarily (although I suppose you can argue it grants an individual right to homeowner's not to be forced to quarter soldiers). So one could reasonably group the 2nd into a set of amendments dealing with military issues.
One thing I did notice in Randy's paper, is that he mentioned that apparently there was a minority position (led by the Pennsylvania delegation) that argued for including language in the amendment for a specific right of self defense. Obviously, this language did not make it into the Constitution. Yet he ignores the significance of this.
"Militia" is not an archaic term for "army."
At the time the Constitution was written, the militia was the army.
Damned if we do and damned if we don't...
This was only the case before the Nine Ninnies "incorporated" the BOR's. Under current SCOTUS practice, the 2nd Amdt applies to all of us.
No, around the time the Constitution was written, the militia was the militia. The army was the Army - 1,216 rank-and-file, composed of the First Regiment of Infantry and the Battalion of Artillery, and under the control of the Federal government.
So consistent with this preamble, I do have the right to own guns. I don't have the right to park an operational tank in my garage or have a ground-launched cruise missile facility in my backyard. I might not even have the right to own an automatic rifle since such weapons in theory might not be what a "militia" would have.
The bill of rights has not been completely incorporated, certain sections of it have been. The Second Amendment is not one of those parts (well at least until the upcoming SCOTUS decision in DC v. Heller comes down.) And for the record, this is not a case where the the Second Amendment is the only portion not incorporated, states are not required to provide you with grand jury indictments, reasonable bail, or juries in civil trials either.
But since the anti's like to call the National Guard a "militia" (it's not), one could argue that we should be allowed the same armament as the National Guard. The fact that we gun owners do not press this argument shows how compromising we are, yet we are never given credit for being so reasonable and accomodating.
I'd love to own a machinegun, but I'll forego it. So get off my back if I want to buy a semi-auto AR-15. I'm being more than generous here.
I am not saying that the Priv. and Immun. clause of the Fourteenth Amendment was not meant to include all of the rights protected by the bill of rights, but the fact remains that a majority of the court has never held that it actually did. As a result several parts of the bill of rights do not currently apply to the states, including the Second Amendment.
Of course, if the SCOTUS wants to make militias a prerequisite to gun ownership, bring it on. I think a lot of states would quickly form their own little well-armed threats to Federal power.
This new interpretation of the second amendment makes no sense at all, even less than its crazy predecessors.
Another obviously nonsensical position. Since the President is Commander in Chief of the militias, are we to believe that he does not have the right to command them to lay down their arms if the States say so?
I don't think anyone here would be able to afford a time share in an F/A-18. The fuel costs alone would bankrupt you for just the one flight you'd contemplate.
The Third Amendment states the right of a homeowner to keep Soldiers out of his house. It deals with a particular type individual's right regarding his home.
According to Miller the weapon must have a "reasonable relation to the preservation or efficiency of a well regulated militia" to be protected. There is an argument that 'squad' type weapons systems requiring multiple operators and support being owned by individuals would be detrimental to the efficiency of a well regulated militia. This obviously applies to WMDs etc.
This seems like a reasonable distinction. If you can carry it and care for it, its a militia weapon. Obviously this would invalidate the ban on many fully automatic weapons, and had the Assault Weapons Ban ever seen the light of SCOTUS Miller would have to have been overturned or the ban shot down, it would seem.
Suppose that a dean announces: “The teacher being ill, class is cancelled.” Nothing about the dean’s prefatory phrase, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected. If the dean was secretly diverting the teacher to work on a special project, still there will be no class. If someone misunderstood a phone message, and inadvertently misled the dean into thinking the teacher would be absent, the dean’s order is not thereby modified in the least.
The Second Amendment’s grammatical structure is identical, and so are the consequences. Whatever a well regulated militia may be, or even if no such thing exists, the right of the people to keep and bear arms is not to be infringed. What’s more, whether or not such a militia can actually contribute to the security of a free state, the right of the people to keep and bear arms remains unaffected. Indeed, even if it could be proved beyond all doubt that disarming the people is necessary to the security of a free state, still the right of the people to keep and bear arms would remain completely unchanged.
Undoubtedly, new information or changed opinions about the assertion advanced in the preamble might suggest the need to issue a new command. If, for example, the dean discovered that the teacher wasn’t going to be absent after all, he might make a new announcement reversing his earlier decision. Similarly, if the American people came to believe that civilian disarmament laws were necessary to promote public safety, Congress might initiate a repeal of the Second Amendment under the procedures set out in Article V of the Constitution. In both cases, a new command would be needed because the truth or falsity of the preambular assertion cannot alter the meaning of the original, operative command.
"If a state decides that they don't want to set up a militia and instead wants to limit your right to own anything more dangerous than a spoon, that's up to the state (and it's constitution), and is not an issue for the 2nd Amendment."
What if the state decided it wanted to have something other than a republican form of government, and changed its constitution to accomodate such a provision? Would that be alright?
I think Rawle and Cooley and others would argue that the Second Amendment could limit actions of the state governments just as the Constitution ensures people of the various states a republican form of government. Although, I'm sure the reasonable restrictions principle would still be in play somehow.
Robert J. Oneto: There are portions of the Constitution that specifically limit the powers of State Governments. The Bill of Rights was not written to be one of those sections, and only has become one (in parts) due to the 14th Amendment.
Bingo. If Professor Barnett contests this, he must be contesting the entire concept of noscitur a sociis in statutory interpretation. Language is always interpreted through the use of context. Indeed, this is an even more important tool for originalists like Barnett, because context is one of the few tools available that can shed light on what the framers meant.
And yes, if the First Amendment read "The freedom to hold and express political opinions being necessary to the success of the republican form of government, Congress shall make no law abridging the freedom of speech or of the press", it would indeed get a far narrower interpretation from the courts (i.e., it likely would not apply to commercial or artistic speech).
"Are we supposed to believe that the framers wrote the second amendment so that the government couldn't send people to war unarmed? What would the supposed contours of this right be? If the militiamen were ordered to fight with handguns, they would have the right to use their own machine guns instead if they felt that was better strategically?
This new interpretation of the second amendment makes no sense at all, even less than its crazy predecessors."
David,
Are you suggesting that our government could order our soldiers to war armed with nothing but a knife, or some other inadequate means of carrying out warfare? What would be a soldiers recourse to address this command to basically commit suicide? ( I am not suggesting that a commander on the front lines, with troops all out of ammunition, could not command all to fix bayonets and charge. ) I hear complaints all the time of our soldiers not having enough body armor and the like. Yet, a soldier's family member could buy a set of body armor or effective rifle and send it to the soldier out on the front lines and give them a fighting chance. Are you suggesting that the soldier and family shouldn't have this ability?
I think this is exactly why the right to keep and bear arms was given to the people. If the government was not adequately arming the troops, the troops ought to have the right, if they have the means, to acquire an effective tool for warfare. The issues of resupply and compatible ammunition, etc. would naturally cause limitations to what could actually be supplied by private means.
I'm aware of that. I'm mocking the entire "incorporation" doctrine by which the courts presume to tell us what rights we have.
That presumption is yours alone. But by all means, lets see the liberal Court members rule as you would like. It will spell the (long overdue) end of the Democratic Party.
I guess that's my point. Some jurists have settle on the idea that the Bill of Rights does not impose restrictions on state governments, except for those portions incorporated by the fourteenth amendment. But, there were respectable jurists, Rawle and Cooley and others, who did not necessarily believe in limiting the breadth of an amendment's jurisdiction. I think once an amendment becomes part of the constitution, its power and force becomes equal to all other parts of the constitution. Simply because an amendment happened to be part of the Bill of Rights shouldn't necessarily mean its power and force should somehow be limited to affecting only the Federal government. ( I understand that this has not been the way things played out historically. I think respectable jurist would not have agreed with how things played out. ) The Constitution does have the power to limit state action, hence amendments to it could do the same.
My point is that no one would make that argument if the subject was something other than guns.
Thus, the argument is NoT coming from the structure of the second amendment but from its subject.
If we're going to have a subject-dependent theory of constitutional interpretation, let's argue for it honestly. If we're not willing to make that argument, then why should we use such a theory?
What? Idaho doesn't have the right to a militia with military weapons? What, exactly, is the state's right then?
I think there's a good case for private individuals owning rather substantial military weapons, in Article 1, Section 8 of the Constitution:
The intent was to legalize the activities of privateers. Aapparently the right to own large weapons of war was taken for granted; in the majority of cases I would expect that private parties already owned the ships and armaments and then were granted the letters of marque and reprisal, rather than having to wait for the letters and only later acquire the necessary tools of the trade. If a private individual or organization could own a cannon or even an entire warship in Revolutionary times, why shouldn't a private individual or organization own a tank today?
Sure they would. They actually do. That's why, say, restrictions on commercial speech are much broader than on political speech. It's why "obscenity" is considered not speech at all despite the fact that it manifestly IS speech.
You're forgetting the Militia Clause: Congress shall have power "To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress..."
Also, nice twist at the end, recognizing the possibility of unintended consequences for those supporting, for the first time in their lives, a limited interpretation of individual rights.
I've written on another potential unintended consequence, the sudden attraction of militia enlistments in certain states, if SCOTUS finds a causal relationship, in an posting at
Where's The Militia? I Want to Enlist!"
-- Bob
Indeed. Armed merchant vessels were quite common. Given the resurgence of piracy, a Bofors gun or two on deck would be good policy today.
(A) I find it very interesting that you presume I would "like" to see the Second Amendment limited. Please find any statement I have ever made anywhere on this blog which suggests I favor restrictions on gun ownership. Being intellectually honest about an argument's accuracy does not connote approval of it.
(B) The presumption is most definitely not mine "alone". It's a presumption that is has been used in many hundreds of U.S. Supreme Court decisions and probably hundreds of thousands of decisions by lower courts. Courts disfavor interpretations which create surplusage. Here's Justice Scalia (joined, inter alia, by Justice Thomas) explaining the point:
"We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' This rule has been repeated innumerable times."
Regions Hosp. v. Shalala, 522 U.S. 448, 467 (1998) (Scalia, J. dissenting) (quoting Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)) (emphasis added).
In light of the undisputed fact that no other amendment in the Bill of Rights contains a "preamble" or "prefatory" or "explanatory" clause (however one wishes to style it), the logical presumption (absent some very clear language from the constitutional convention or commentaries contemporary with the Second Amendment's ratification) in light of the rule articulated above is that the language operates in some manner to modify or limit the rest of the amendment.
A much later example would be the spontaneous "militia" that met Jesse James when he tried to rob a Minnesota bank. LINK
The idea is that if all free men have arms, it would not be hard to call up a militia in case of criminal or civil unrest.
Depends on how far back you want to take your history. The English BoR (1688) limits the militia by protecting the right "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law". It's important to remember just how stratified society was in the 18th C. We may think it's a good thing to have everyone armed, but there's no way the upper classes of that era were going to allow such a thing unless they organized and controlled it.
That's just plain insane. You are seriously arguing that a soldier has the right to wear his own body armor even if his commanders feel that his mission parameters preclude it? You think the framers intended militiamen to have a right to choose their own weapons against the wishes of their commanders? That's so crazy I don't know how to reply to it other than to say it's crazy.
The idea that a militiaman should have a right to his own weapons in the service of the militia and that this is a right against the state in whose employ he serves as a militiaman is just crazy.
You think the framers seriously meant that militia men had their own choice of weapons, as a right against their commanders in the militia? Or did you mean they had a right to have those weapons for militia use but not the right to use them in the service of the militia?
That's incomprehensible and bizarre.
Just Dropping By replies:
Dilan Esper adds:
JDB, Dilan: Let's say this is the way the 1st Amendment was drafted, and I will stipulate that you are correct, the interpretation would be much more narrow.
Given this hypothetical, what would you say about the constitutionality of a Washington DC law which said this:
It is a felony to possess a book, pamphlet, newspaper or magazine.
Or is my extension of this analogy to Heller missing something?
The unorganized militia is exactly that: Unorganized. There are no commanders. This is precisely because the members of the unorganized militia must be free to act without the guidance of government appointed commanders. This is to enable them to revolt, and that is the express intent of the founders.
A government that fears a revolt by its own armed citizens is a lot more likely to listen to them and protect them from oppression.
And that is the true meaning of the second amendment.
As I recall, the Texas Navy was privately supplied with warships. Although it wasn't part of the US at the time, it certainly acted consistent with US philosophy.
Read it like this:
[A] well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; therefore, the right of the people to keep and bear arms shall not be infringed.
Pretty simple.
David, thanks for responding to my comments.
The problem with this train of thought is that we have allowed the subject of "Martial Law" to interfere with a discussion of "Constitutional Law" and I don't think that's appropriate for this particular thread.
Soldiers that sign up for the military voluntarily subject themselves to an entirely different set of laws, Martial Law, than civilians are subjected to. That's why soldiers answer to Courts Martial rather than civilian courts when they are tried for doing something against miliatry rules.
So, your comments regarding what a soldier can or cannot refuse to do is a topic for a different conversation.
But your comments do not erase the fact that soldiers have been permitted to use body armor supplied by themselves, and I know national guard troops that have been permitted to supply their own rifles and other personal arms. I know where I live, certain military type rifles are hard to come by for civilians, because a lot of them are bought by soldiers first and are heading over to Iraq and Afghanistan. I also know that members of Special forces units have been given a fair amount of latitude in supplying themselves with their own arms.
So, let's not confuse topics here.
I don't believe you can provide a single cite for this from the time of the Founding. The militia did not exist to allow rebellion, it existed in order to enforce the laws. That's why habeas corpus can be suspended "in cases of Rebellion"; it's why Article IV commits the federal government to protect the individual states "against domestic violence"; it's why Shays' Rebellion panicked the upper classes and reinforced the push for the new constitution; and it's why the militia were called out to suppress the Whiskey Rebellion instead of joining it.
As was noted earlier in the thread, the Supreme Court has never applied the 2d A to the states.
In addition to my comments above, I'd say that any theory which derives the right to bear arms from the failed attempts to restore Catholic monarchs is, well, implausible.
Also, Hamilton states in Federalist #29:
"If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people?"
Obviously from this passage Hamilton felt that the "militia" composed of husbands, sons and fellow citizens would not easily become a force of the tyrant but rather his undoing.
In any case, the body of men considered the "militia" was the same body of 15-60 year old males who were subject to being drafted into the Posse Comitatus by the county sheriff when law enforcement assistance was required. These men were thought by the Founders to be of local character and unlikely to easily succumb to the designs of tyrants to oppress their neighbors but ready were to assist in the legitimate defense and security of their state and nation. It is also apparent that these men were expected to have weapons at their disposal in order to meet their civic duty. If such weapons were to be in the control of the State then why would Hamilton surmise that these men must muster once or twice in the course of a year "in order to see that this be not neglected"? (Federalist #29)
Thomas Jefferson, 1787
I think this constitutes a single cite from a founder from the time of the founding. I'm sure there are more, but it's 3am and I hope to get back to bed if the stupid dog quits waking me up.
SO the Founders [albeit perhaps GRUDGINGLY] agreed that a militia is necessary for a State to remain free (perhaps of Federal tyranny), but also recognized that a State Militia could take on the role of ANGRY DRUNKEN LOOTING MOB. And therefore, the Founders chose to allow me to protect myself FROM THE STATE MILITIA.
It's clear to me that this is about an individual right - to protect myself from a State Militia gone wrong. Just as a soldier cannot appropriate my homestead, neither can an angry state militia member. I can shoot them if they try.
Thinking back to the living and educational conditions of the average person in the US in the post revolutionary period, these militia folks may be returning from war and "appropriating" anything they so chose by virtue of force left over from the State and Federal govenment arming them. How many were prisoners and other malcontents?
This is easy for me. You people can all continue to lose your sleep.
This 'rephrasing" was first promulgated by J. Neil Schulman in his 1991 essay, The Unabridged Second Amendment
Madison's object, then, was to allay the fears of anti-Federalists while preserving the powers held by Congress. If Congress is capable of depriving the states of their militia, disarming them through neglect or failure to appropriate, the states needed a means with which to raise another militia. That means is the individual right to keep and bear arms. An armed populace is a resource to a state. This resource was recognized by the Court in Presser v. Illinois (though in reverse) in a dicta where the Court noted that "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think (p.266)it clear that the sections under consideration do not have this effect."
Sorry about the dog. I know that feeling.
I was aware of the Jefferson quote (it's pretty famous). But there are a few things to consider here. Jefferson wasn't a "founder" as these things go. He was in Paris during the Constitution period, including when Madison introduced the Bill of Rights and when Congress approved it. He never voted for either the Constitution or the BoR.
In addition, Jefferson may not have been upset by Shays' Rebellion, but that didn't mean he (or anyone else) related that Rebellion to the purpose of the 2d A. In fact, while Jefferson wasn't upset by Shays, he didn't seem too upset that the MA militia was used to suppress the Rebellion either. What seems to have concerned him was that "the people" (white men, that is) could protest oppression, not that they could overthrow the government of MA. As I pointed out, the Constitution specifically guards against this possibility.
Well, he was alive at the time. But since he was overseas and didn't actually participate in any way in the drafting or ratification of the Constition or BoR, it's hard to describe him as a "founder" in that sense. He is, of course, fairly described as one if you use the more inclusive sense of the Revolution and of the establishment of the new government in the 1790s. It's just that as to the specific case we're discussing -- the contemporaneous meaning of the 2d A -- Jefferson doesn't have much to say.
I should be clear, btw, that I'm just trying to be accurate on the history. I'm not an originalist in any case, and if I were one, I'd argue (as many do) that the proper time frame for the interpretation of the RKBA is 1868, when the 14th A was ratified with the reasonably clear understanding that it would incorporate the 2d A. It's a much better argument, IMO, than one focused on 1790.
Given this hypothetical, what would you say about the constitutionality of a Washington DC law which said this:
It is a felony to possess a book, pamphlet, newspaper or magazine.
Or is my extension of this analogy to Heller missing something?
I would say in that hypothetical that the statute would most likely be found unconstitutional on the grounds it was overbroad. The statute would have to be redrafted to avoid forbidding possession of protected reading materials (whose scope would presumably have been defined by earlier SCOTUS decisions interpreting the "well educated Electorate" clause).
MarkField:
MarkField is right. Not only was Jefferson out of the country when the Constitution was framed and adopted, in his correspondence with Madison at the time he showed no enthusiasm for the Constitution. Jefferson valued rebellion and revolution much more than the stability and national power imposed by a constitution. He was never much of a supporter of the idea of union, preferring instead the absolute independence and sovereignty of the states. In his own mind, Jefferson was a Virginian, not an American. He was a great admirer of the French revolution, suffused as it was in blood and gore. Never mind that it ended in tyranny. The epitaph he ordered engraved on his headstone at Monticello recites his achievements in Virginia (including the founding of the University of Virginia) and his authorship of the Declaration of Independence, but completely ignores the fact that he was once President of the United States. Jefferson is a poor "founder" to cite for the original understanding of constitutional provisions. Madison and Hamilton and others who were "present at the creation" and exponded on constitutional provisions at the time of adoption, are much more authoritative.
All this renders arguments over the actual words somewhat irrelevant.
Bingo. But not only that, assuming that the Second Amendment is read by the Court as to not confer an individual right to bear arms, there are numerous state constitutions that explicitly do provide such a right. And in those states that do not, the people will resist turning over their guns if private use is made illegal.
Simply put: people will never give up their guns. This delusion that gun control can be forced upon society by the courts will never come to pass. What the Supreme Court says here is irrelevant. Oh, it'll be nice if they actually do their job and find that it's an individual right. But it won't matter.
Unless the liberals in America want to create a police state (something akin to a college campus, perhaps), then there's no way that individuals will give up their guns.
The rest of this is just sophistry.
You manage to pack a lot of nonsense into two short sentences.
First, "gun control" does not mean that that people will be forced to "give up" their guns? Do emissions controls on automobiles force people to "give up" their cars? Last time I checked, there were still a lot of cars driving around on the streets and highways in my part of the country. Would a law requiring child-proof trigger locks force parents to "give up" their guns? Do vehicle licensing laws mean that people can't own or use cars? Would a waiting period for gun purchases mean that people couldn't "keep and bear" their legally purchased guns? These are all non sequiturs and way underpersuasive.
Second, your insinuation that gun control is being "forced upon society" by the courts is way off base. The law under challenge in Heller was enacted by the democratically elected council in DC, not by any court. If the courts do anything, it will be to save society from the legislatures elected by the people, not "force" gun control on society. But they will only do so based on an interpretation of the Second Amendment, which is their duty.
Thank you for your reply - I thought the same myself.
With respect to Heller, in some sense the preamble issue is beside the point, because the DC gun ban is over broad even assuming the preamble does qualify the right to keep and bear arms.
Then the question is, how could the SCOTUS possibly rule that the DC gun ban is constitutional? What would they have to rule about the nature of a "militia", and how could they do this?
Not that I think such a result is likely, but the argument would be simple:
1. The 2d A doesn't create a private right of gun ownership, but is limited to membership in the militia.
2. Only states can have militias. Since DC is not a state, there can't be any militia.
3. Thus, in DC the local government can confiscate all guns.
Jefferson was prominent in US politics. He was at the time a member of the government as an ambassador to France. He kept up continuous correspondence, as evidenced by the famous quote, with other prominent people in the government.
He was a major force in Virginia politics, and Virginia was at the time the most powerful state in the Union.
So how again do you claim that he "wasn't a founder?" Maybe his opinions were not agreed to by all, but he certainly spoke for at least one significant viewpoint at the time. As in all political discussions, there was hardly complete consensus on these issues even back then.
It doesn't? What happened in Britain and Australia, then?
Second, your insinuation that gun control is being "forced upon society" by the courts is way off base
Give me a break. Yes, this was a law passed by the DC council, but the entire reason why liberals are salivating over the idea that the right to bear arms isn't individual is so they can get courts to ban guns. They'll sue gun manufacturers, sue individuals, sue governments, everything and anyone. If you think that's off-base, you haven't seen liberals in action.
Just to be clear, I clarified above that he certainly was a "founder" in the sense that he participated in the struggle for independence and in the formation of the new government. I was only characterizing Jefferson for the express purpose of pointing out that he has no special authority with respect to the 2d A. Even if he did, he was only a single individual and we'd still have to consider the meaning of the 2d A to a much wider group if we wanted to understand the original public meaning.
bacchys suggests using the term "Framer" to describe those who were responsible for the Constitution. That's fine with me to make that distinction. We'd then say that Jefferson was a "Founder" but wasn't a "Framer" of either the Constitution or the BoR. He had no participation whatsoever in writing either one (though he urged a BoR to Madison) and he didn't vote to ratify either one. I'd note also that when Jefferson did urge a BoR to Madison, he mentioned several rights, but NOT the RKBA.
All of this seems to me to be getting far afield. I'm partly to blame because it was my infelicitous choice of words, but let's keep the main issue in sight: there is no support in the text of the Constitution or the history of the 18th C for the idea of an "unorganized militia". In fact, both text and history strongly oppose that suggestion. That argument can't support an individual right to bear arms.
Pace Dave D., I'm not trying to refute other arguments for an individual right; I even suggested a better argument in one of my posts (although it, too, has some problems). As I mentioned above, I'm not even an originalist, so I can afford to be neutral about the history of the 18th C -- it isn't determinative to me either way. I just think it's important to be realistic about what that history is, for better or worse.
Right back at ya...
First, "gun control" does not mean that that people will be forced to "give up" their guns? Do emissions controls on automobiles force people to "give up" their cars?
There is no right to drive an auto. BTW, did you "register" [and attend a safety class on hate speech] before exercising your 1st ammendment rights here? If not, I guess you'll be fined and your account deleted...
The Second Amendment is unique among the amendments in the Bill of Rights in that it has what could be characterized as a "preamble".
So if SCOTUS determines a well-regulated militia is NOT necessary to the security of a free state, we can just toss the 2nd out of the BOR?
Echo. Germany required the registration of all guns, to prevent street violence between fascists and communists. A well-paved road. When the Nazi came to power, they confiscated those lists to disarm the populace. And we all know what happened next.
Quite frankly, its a moot point. Anyone coming to my door to take my weapon will be shot dead on the spot.
While I agree that supporters of unenumerated rights disparage enumerated rights at their peril, the Constitution does not grant the federal government the power to prohibit abortion or sodomy.
[Possible dangerous argument]
1. The 2d A doesn't create a private right of gun ownership, but is limited to membership in the militia.
2. Only states can have militias. Since DC is not a state, there can't be any militia.
3. Thus, in DC the local government can confiscate all guns.
Some thoughts in rebuttal:
1. Militia traditionally defined as all males capable of bearing arms, modernly extended to women as a protected class (and perhaps to old people as well). Membership in the militia thus automatic upon reaching 17 (Per the militia statute as revised since 1777 or so.)
2. DC has a population, some of which is capable of bearing arms, so has a militia. DC residents otherwise qualified would have to have been specifically exempted -- as, for example, the Vice President is -- from militia membership. Further, DC has an organized militia in the form of the DC National Guard. (Consider also that Cheney was able to carry arms even though not a member of the militia, because he shot an old friend in the face.)
3. The DC local government is an administrative unit of the federal government established by Act of Congress. Therefore the 2nd Amendment applies directly to the acts of the DC city council, because they are federal law.
Jefferson did not have a formal vote, but he was nonetheless very influential. Political figures need not have a direct vote to have influence. The state of Virginia, at the very least, would have been affected by his opinion on the ratification of the Constitution and his urging of the Bill of Rights is evidence that he was a founder and a framer.
If, as you claim, Jefferson did not want a right to keep and bear arms in the Bill of Rights, then we should be very interested in knowing why, especially regarding his ideas on the importance of revolution.
And what about territories? In 1910, were U.S. citizens in Arizona and New Mexico ineligible to become members of a militia? What about the folks in Guam today?
Title 10 says that they are members of the militia.
Where in the US is it illegal to drive an auto? What state has banned automobile driving, or tried to? Can you legally drive a car in the District of Columbia or the US territories? If something is not prohibited by law, then there is a right to do it, driving an automobile concluded.
I think what you meant to say is that there is no constitutional right to drive an auto. What about the right of liberty recognized in the Fifth Amendment and the Fourteenth Amendment? Is driving a car part of liberty? What about the unenumerated "certain rights" recognized in the Ninth Amendment? Does the US Constitution, or any state constitution, empower either the federal government or a state government to ban automobile driving? Do you really believe that a general ban on automobile driving (except as punishment for conviction of a crime, such as drunk driving) would pass muster in any court subject to the US Constitution? If so, you're looking at a different constitution than the one I'm looking at.
Hold on. I never said that. What I did say was that Jefferson very strongly urged Madison to support a BoR, but that the rights Jefferson mentioned did not include the RKBA. That doesn't mean he opposed such a right, it just means he never mentioned it. We therefore have no way of knowing what he thought about it.
I agree with you about his influence. That's not the same as actually writing or voting for the Constitution.
But look, I don't want to get bogged down on the correct word to describe Jefferson. It doesn't matter substantively to this debate. We'll call him whatever you prefer.
I'll take Skyler's word for it that current law makes the residents of territories members of some form of militia. That wasn't the original understanding, though. Consider the following:
1. The Militia Law of 1792 defined membership as "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years". Link. Emphasis added.
2. Art. I, Sec. 8, cl. 16 reserves to the states "the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress".
3. A militia controlled exclusively by the federal government would undercut the argument that the militia served as a check on federal authority and despotism.
I think these points respond to Tony Tutin's post also.
The "preamble" of the Second Amendment is a justification or rationale for the non-infringement of the right, but as a matter of grammar the introductory phrase does not qualify "the right".
The claim that the second Amendment is "different" is at best a non-sequitor as "different" does not mean "qualifier".
In keeping with the rules of construction, the introductory phrase ought to be accorded all the meaning which it can have given the actual words and structure of the text. It would then be read not as a qualifier on the right of the people to keep and bear arms, but as a rationale for the non-infringement of the right and providing context.
Also in keeping with the rules of construction, the main clause ought to be accorded all the meaning it can have given the actual words and structure of the text. Since the introductory phrase is not written in such a way as to qualify "the right of the people to keep and bear arms" of the main clause, it ought not be read that way.
This is a non sequitur. Neither Roe vs. Wade nor Lawrence v. Texas involved federal prohibitions.
Incorrect. A right is not something that isn't prohibited, a right is something that can't be (legit