On behalf of the Second Amendment Foundation, George Mason law professor Nelson Lund has written a meticulous textual analysis of the Second Amendment, in the Supreme Court handgun ban case, District of Columbia v. Heller.
In the tightly-written brief, Lund argues that every permutation of the militia-only interpretation of the Second Amendment leads to obviously absurd results. (Not only as a practical matter, but as a matter of textual interpretation.)
He urges that the language from United States v. Miller, suggesting that "'private citizens might have a right to possess weapons that are 'part of the ordinary military equipment or [whose] use could contribute to the common defense'" be treated as dicta. When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.
Lund explains the preamble of the Second Amendment as an "ablative absolute or
nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information
about the circumstances surrounding the statement in the main clause."
A telling example is provided by Article 3 of the Northwest Ordinance:[Side note: the inclusion of this quote in the briefing can be traced to independent scholar David Young having seen the quote above the entrance Angell Hall, at the University of Michigan. It is a perfect example of the importance of inscribing in stone the noblest statements of public virtue, so that those statements will be known to future generations, and will be used to encourage liberty and responsible self-government.]
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
This provision – ratified by the same Congress that drafted the Second Amendment – attests to a belief in the beneficent effects of schools and education. But it does not imply that "[r]eligion, morality, and knowledge" are their only purpose.
As for the rest of the brief, it merits the reader's careful study. No brief in this case is as lucid. As a former Supreme Court clerk, Lund writes with the precision that is typical of Solicitor General briefs. It is not uncommon for briefs (on whatever issue) to puff up themselves with bombast and extravagent language. The Lund brief is a superb example of how to write authoritatively but not pompously; for the latter mode betrays an underlying insecurity about the correctness of one's argument.
There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this weblog include lawyers of varying degrees of experience, and law students; some of them have an interest in Second Amemdment issues, while almost all of them aspire to improve their brief-writing. If you want to read a model Supreme Court brief, this is the brief to read.
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- Military Brief in DC v. Heller:
- District Attorneys, the ABA, and precedent in DC v. Heller
- Errors Brief in DC v. Heller:...
- Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
- Nelson Lund brief in DC v. Heller:
- Women's Rights Brief in DC v. Heller:...
- Claremont Institute Empirical Brief in DC v. Heller:
- NRA brief in DC v. Heller:
- Respondent's Brief in DC v. Heller:
No, the government created a constitutional right to machine guns, by deciding that they would be the equipment of ordinary soldiers. I think that the objectively best interpretation here is that the 2nd amendment guarantees, not creates, a right for the average citizen to be armed in a fashion comparable to the average soldier. In the words of Tenche Coxe, "Their swords, and every other terrible implement of the soldier, are the birth-right of an American" If the government thinks machine guns are too awful for the average person to own, it should rethink arming it's soldiers with them.
Really, what Lund is playing at is just another version of the same "The Constitution means whatever I personally think it would be prudent it mean." game all the guys on the other side are playing at.
"the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"
Quite a number of other arms are protected by the 2nd Amendment. For instance if the police use switchblade knives, batons, saps (aka blackjacks) or mace, in the course of their duties, the people have a right to keep and bear them as they are part of the normal equipment used in enforcing the law by government agents. Here in the PRK, citizens are legally prohibited from owning the same. Unconstitutionally I might add. Otherwise we end up with the model the British used in their 1689 Bill of Rights.
"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"
Which limits on possession of arms subject to a religious test, a property test and legislative process our Founders explicitly rejected in crafting the Second Amendment. The differences are not optional...
“For those who believe it to be outdated, the Second Amendment provides a good test of whether their allegiance is really to the Constitution of the United States, or only to their preferences in public policies and audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend, and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides a method for repeal. The Constitution does not furnish the federal courts with an eraser.”
KLEINFELD, Dissent from denial of rehearing en banc Nordyke v. King,
As Brett Belmore notes above, militia-like paramilitary organizations have played an increasing role in contemporary warfare, and their weaponry has become more sophisticated than in the 1930s. Given that the AK-47 has long been the modern militia weapon of choice, I agree a fair interpretation of Miller in the context of modern milita warfare would require inclusion of automatic weapons in the protected class. Frankly, most serious contemporary militias that actually have fighting pontial and don't exist solely for show have access to anti-tank and anti-helicopter missiles.
"A basic principle of constitutional interpretation is that no word is superfluous." Read Alan Gura's Respondent's Brief and you will come to question that conclusion.
Further, let me ask you this. Should your proffered rule of constitutional interpretation trump the actual intended-by-the-drafters and understood-by-the-ratifiers meaning of a provision of the Constitution?
As a matter of logic, this is weak. Soldiers are selected from the population according to certain qualities, and are trained. There are many things expected of a soldier that are not expected of the average person.
Clearly not. Mine certainly doesn't. I do understand what Gura and Lund are about: They think the Court might shy away from upholding the true meaning of the 2nd amendment, so they're trying to craft an attenuated version of it the Court would be willing to uphold, perhaps with the notion that later we could start pushing for something more accurate.
As a tactic, perhaps defensible, but I don't think it's intellectually honest. The 2nd amendment genuinely means something fairly radical by today's standards, though not by the standards widely held within living memory. In fact, that ought to be one of the points we make in court: It can not be seriously suggested that respecting the 2nd amendment in it's full glory would have horrible consequences: The members of the Court themeselves grew up in a nation where the 2nd amendment was for the most part observed, and it was not a hellhole.
Literally, the government decides what constitutes "arms" in a Second amendment sense, by what it decides to arm it's own military with. If it doesn't wish us to have a constitutional right to own assault rifles, it has two choices: Either stop issuing them to the troops, or amend the Constitution.
That is only different by degrees from the argument that the 2nd Amendment only guarantees a right to weapons in common use by the militia of 1789. I'll admit to a grudging respect for people who can say such things, while maintaining a straight face.
It's even better when you can get them to agree that the Press Clause doesn't guarantee a right to a high-speed rotary assault press.
I thought the amicus brief filed on behalf of Jews for the Preservation of Firearms Ownership was its equal, or better.
We interupt this post with a report from our DC correspondent:
Campus authorities reported earlier today that an ornery professor of selective history had punched and kicked the bucket.
Upon hearing the news, an esteemed Professor of Linguistics was heard to remark “What a waste, the poor bastid bruised his hand and he died!”
All kidding aside, the SAF brief is excellent but I was slightly disappointed to see that it did not directly address one of the key points of the Professors of Linguistics(POL) brief -that "bear arms" is an idiom as used in the Second Amendment.
There are several flaws in that(POL) argument.
Tenche Coxe's contemporary writings on the amendment as it was being drafted did not follow the idiomatic form that Professor Baron insists would have been understood at that time by persons of ordinary language skills.
"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
The words "bear arms" do not stand alone in text of the amendment but are combined with "keep and" to give "keep and bear arms". Thus if the Linguistics Professors want to argue for an idiomatic meaning, they ought to supply examples of what "keep and bear arms" meant as used in a supposed figurative sense, rather than providing examples of what "bear arms" meant when used elsewhere as a figurative expression.
Furthermore, when viewed in the proper context, what the POL ought to be trying to shed light on is the meaning of "the right of the people to keep and bear arms" as the "right" is the subject of the main clause. The POL avoid taking notice of contemporary uses of the words "bear arms" in the context of a right to bear arms for obvious reasons.
The POL's idiom argument is a combination Logical Fallacies; Sleight of Hand (swapping "bear arms" for "keep and bear arms"), Out of Context interpretation(removing "bear arms" from context of rights) and Evidence Barring(Not taking into account contemporary sources which negate their assertion).
Ignoring, for now, the falsity or accuracy of your statement, how about we take things to the more easily explained police officer?
In most portions of the United States, the average policeman has no more accuracy qualifications than is required by most CCW classes. Federally, they are no more prohibited from accessing a new automatic or burst-fire weapon than the military.
Miller's actual holding is of a rule of evidence: that the Court couldn't take judicial notice of whether Miller's sawed-off shotgun would be of use to a militia. From all my reading, I think the Court was going to set up a multi-level protected class interpretation of the 2nd A similar to current interpretation of the 1st A: "political speech" is more protected than "commercial speech" which in turn is more protected than "porno speech". Unfortunately we will never know since Miller got himself killed and the remand was therefore dismissed as moot.
This is one of the few attempts I have seen to cogently argue that Miller's rather glib and factually unsupportable rationale for upholding the 1934 NFA should be disregarded. I suspect that at least the pivotal center of the Court is going to have some reluctance to sign onto a holding that necessarily must be read to invalidate current Federal restrictions on possession of machineguns, destructive devices, or other man-portable ordinance -- even if only based on a gut-level feeling that unrestricted civilian possession of such weapons would be "bad." Thus it seems that a repudition of the Miller test would provide a useful alternative to the Solicitor General's invitation to deflate the standard of review to achieve the same result.
But Lund does not take the next step to propose what, if any, test should replace the Miller test. It could be helpful if at argument counsel was able to articulate a standard for permissible types of arms that could supersede Miller, to satisfy any visceral concerns that some (most?) of the Court may have about the logical result of a strict-scrutiny application of the Miller test.
Incidentally, although not really central to Lund's insightful invitation to overrule Miller (and in fact arguably illustrative of the grossly inadequate factual record in that case): Lund is wrong about the state of military armaments at the time of Miller -- yes, the bolt-action Springfield 1903 was still the standard Army battle rifle, with the M1 Garand just having been authorized as the next generation battle rifle circa 1936. However, the M1918 Browning Automatic Rifle ("BAR") was well-established by this time as USGI one-man squad-level armament, and the M1921/28 Thompson submachinegun was officially adopted by the Army in 1938.
To get really arcane, the US provisionally adopted the Pedersen Device (U.S. Pistol, Caliber .30 M1918), an attachment that turned the bolt-action Springfield into a semiautomatic, in 1918. Since the device required the user to remove the original Springfield bolt, which then tended to get lost, it didn't last long.
IMHO, you are lapsing from logical argument into legal argument.
Still, if you are going to compare the firearm in civilian hands to the firearm in military hands, don't you also have to compare the civilian to the soldier? I don't see that the militia argument gives the right to bear arms to a person unfit to serve in a militia, say a quadriplegic 80 year old.
As of 1939 the United State infantry (army and marines) was widely equipped with a variety of weapons that go far beyond "bolt action rifles." Note that the equipment designation often includes the year the weapon was adopted...
-belt fed machine guns, viz., the .30-06 caliber M1919 air cooled and M1917 water cooled light machine guns and the .50 caliber browning M2. The belt-fed guns are arguably crew served, but only in the same sense that bolt action sniper rifles are crew served- the weapons can function and be carried by a single user, but it is far less efficient than with helpers to spot targets, carry spare ammo and barrels and fill in for wounded crew members.
-submachine guns, viz., the .45 caliber M1927 and its variants, the .45 caliber M3 "grease gun" and the .45 caliber Reisling.
-30 caliber carbines, such as the M1 and M2 Carbines, both chambered in .30 carbine, an intermediate rifle cartridge. The select fire model was originally intended to be introduced in 1938 but was delayed till 1944. The select fire version is arguably one of the earliest examples of an assault rifle.
-early attempts to fill the role of the assault rifle. The Browning BAR and M1 Garand were both in widespread use at the time. Although they are much more powerful than modern infantry rifles, they clearly occupy the intermediate position between bolt action rifles and submachine guns that was eventually filled by the modern assault rifle.
-various types of combat shotguns were in widespread use during the civil war, wwi and wwii. Long before the 1939 Miller decision, recognizably modern combat shotguns (e.g., tube fed pump and semiautomatic varities) were already in use.
-semiautomatic pistols such as the M1911 colt automatic pistol
-revolvers such as the M1917 revolver weapon that used the same ammunition with half-moon clips to hold the rimless ammunition
-the M2 fragmentation hand grenade, in common use since the 1920s
There are other weapons as well, the standard infantry weapons of the US as of 1939 was a VERY long list. This doesn't include weapons in use by OTHER countries nor in widespread unofficial use by the soldiers themselves such as the KA-BAR bowie or various personal firearms. It also doesn't include the large number of novel weapons developed during WWII such as the M6 Bazooka.
Principle of interp: an operative clause should be read, at the very least, in a way that makes accomplishing the object of a preamble more likely. (At the very least, because a drafter may not state every objective.).
Objective stated in preamble: we MUST ("necessary") have a well regulated militia.
Read the operative clause as "everybody can have guns." Well, the people can have them, and we know the majority (and in 1789 the great majority) will do so, and learn how to use them. This makes it easier and cheaper to create a well regulated militia. It makes accomplishment of the preambular purpose easier and more likely.
Read the operative clause in a way that allows broad categories of guns to be outlawed. How does that make a well regulated militia more probable? Government has to figure out, not only how to turn an armed militia into a well-reg'd one, but how to create an armed militia in the first place, and train them.
I really wish I had been farther along in my legal career when this case came up so I could have participated in a more meaningful way than just cheering from the sidelines. On the other hand, I am grateful that I was far enough along to able to meet all the people involved in this and fully appreciate what was happening.
I understand Lund is attempting to find a way out of Miller, perhaps because he sees it as leading to a position of protecting heavy arms he may fear the Justices would be unwilling to go, so as to give an intermediate option of protecting small arms but not anything heavier. But there's no need for the Supreme Court to overturn a precedent here.
On reflection, it seems to me that the boundaries of the "what kind of arms was the Constitution trying to protect" question should await a case that actually tests them.
That said, in my view there is a strong place for stare decisis so long as the Supreme Court is attempting to do its job of a close reading of the Constitution's text in light of its history. People can disagree, and can get these things wrong, but courts shouldn't flip-flop just because their personnel changes.
I see cases where the Supreme Court has abandoned text and history and instead explicitly read its own policy views into its decisions as fundamentally different. I don't see Miller as such a case. It may have gotten the wrong take on both text and history, but the Justices were attempting to do their job. I think overturning Miller would have to address stare decisis issues, not just the question of whether the Miller position is correct as an original matter. I also don't see that the issue was dicta in Miller; the Court needed to decide it to determine that the type of weapon Miller was convicted for was outside the Second Amendment's scope.
But the reason for all this discussion is the lack of clarity of the short 2nd amendment itself. And why is it so short? Why is it grammatically tortured? Why is it amendement #2.
My (Occam's) reason is this: the right of the people to keep and bear arms was so basic, so well understood, and so uncontroversial that little discussion or clarity was needed by the framers.
"Oh of course we should mention arms, so just throw something quick into the Bill of Rights and let's get on to the other items that need to be hashed out!"
Everyone knew what it meant, and the Framers are rolling over in their graves. How could we make something so complicated?
Am I the only one who doesn't consider the second amendment's grammar "tortured"?
"The sky being cloudy, he carried his umbrella." Nothing unclear about that. "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The original two-clause version was written by George Mason for the Antifederalists in the Virginia Ratifying Convention. He used his original 1776 well regulated militia Virginia State Bill of Rights language verbatim. To this he added Pennsylvania style BR language. The original was two declarations with no dependencies.
The well regulated militia language that many think strange for a BR because to them it implies controlled by the government came from Mason in 1776 Virginia. In 1774-5 Virginia, prior to hostilities, Mason and others helped form defensive associations to defend against unconstitutional actions of the government. Mason described the Fairfax Independent Company as a well regulated miltia. It was not under government control, it was organized to defend against government officials and forces.
Is it getting any clearer yet? Don't forget the history.
Take the first clause alone and it has no legal meaning. It states a principle and nothing more. A well-regulated militia is necessary to the security of a free state. Ok, fine. Does this alter the balance of power? Does it recognize or grant a legal right? The Supreme Court has held that it does not (Perpich v DOD, etc). Congress retains control over the militia.
The second clause alone still has meaning- it recognizes a right of the people to keep and bear arms and forbids transgressions against this right.
The last question is whether there is anything indicating dependency of the 2nd clause upon the first. If the founders wanted to indicate dependency, they could have easily done so. But they didn't. At best, you can imply that protecting the right in the 2nd clause was motivated by the sentiment expressed in the 1st clause, but that doesn't create a legal dependency.
Is anyone else at all troubled by the author of an amicus brief citing to his own forthcoming article, as Lund does at page 5 of the brief?
Is it slightly unsavory self promotion (a stab at getting the article cited in the opinion)? A way to evade page limitations? A common practice that I've never noticed before?
Will it soon be standard practice for counsel for the parties to write lengthy articles to be published shortly after the briefs go in? (I worked on a brief to the Court some years ago where we joked about doing just that. It seemed too crass for serious consideration.)
I should note that this probably wouldn't have struck me had this brief not been called out as a model.
If the 2nd had been written as: "The means to defend one's person, family, and property against criminal marauders, being necessary to the maintenance of ordered liberty, the right of the people to keep and bear arms shall not be infringed.", then it could be reasoned that the right was restricted to personal defensive weapons. That would not preclude the right to rebel against tyranny, but would rationally limit the right "keep and bear" to certain classes of weapons.
The Militia Clause expands the enumerated right to militarily useful arms, for the common defense, vs. limiting the right to bear arms for personal protection. IMO, one must jump through flaming rhetorical hoops. to argue otherwise.
Even if the right were "restricted" to those weapons in use by the National Guard (i.e., the "Militia," as opposed to the Army and Navy provided for separately in the constitution), it would still produce a constitutional right to far more than just infantry weapons, with no self-evident limiting factor. Perhaps you believe that the Second Amendment actually should reach so far, but I suggest that that places you in the same category as those who would have the First Amendment protect the right to shout "fire" in a crowded theater.
While Lund's brief was ambitious, slightly self-serving, and by no means a model of clarity of rhetorical elegance, you have wonderfully illustrated why lawyers have to go to such excruciatingly arcane analyses on these issues: folks like you wandering around claiming that anything that is not part of your beliefs is absurd. I'd bet you'd be first to the ramparts if we asserted that your ability to make a million dollars is absurd, also. Because, really, who needs a million dollars?
Actually, more directly, your comment embodies the specific, particular urge to tyranny so odious to the drafters, and indeed, all people inclined to freedom. The only remedy to people who think that the world exists solely within the limits of their comprehension, and that they are free to use armed force against what they deem absurd, is, precisely, the resort to the full range of arms of war.
Only if you refuse to distingish between arms and armaments, a common step in constructing 2nd amendment strawmen.
However, the association of "bear arms" with religious scruples in an early draft of the Second Amendment is a weak point of the brief, because it allows a strictly military definition of bear arms. Discussion of "well regulated" in different contexts would also help the brief.
The Miller opinion's discussion of the Second Amendment reads like stream-of-consciousness, or thinking out loud. The opinion shows the defect of ex parte proceedings in the Supreme Court.
Not to mention the AK's are old enough to classify as a "relic or curio."
re: egoism: I was struck by this bit of Lund's footnote 17: On the contrary, the analysis presented here and infra produces a much more coherent and cogent interpretation of the whole text than the one offered by these amici and by petitioners. Go me!
This has got to be the most unintentionally funny thing you have ever written. The brief doesn't qualify as one of the more embarassing ones that are regularly filed in the Supreme Court, but it is hardly a model. For a model, go to http://www.usdoj.gov/osg/briefs/2007/2007brieftypes.html and click on any brief.
Looking only as far as page 3, the summary of the argument is one paragraph long. That is not what the Supreme Court expects.
Turning to page 4, we find Part I, in which the first paragraph posits that Petitioner's interpretation leads to "one of three untenable conclusions." Just one? Is it that there are three possible conclusions, all of which are untenable, or is this a guessing game? After setting out the three possibilities and stating that the Petitioners "appear to adopt" the third, the brief then gives three reasons why that option is "fatally flawed." The first reason is: "First, like the second alternative,
it entails an historically unsupported assumption
that the Second Amendment substantially
altered Congress’ Article I authority to regulate the
militia."
This sentence has several problems. First, it begins with "like the second alternative." There has, at this point in the brief, been no substantive discussion of the second alternative, so what use is it to compare the third alternative to the second? Second, it asserts that there is "an historically unsupported assumption," which is itself an unsupported statement. Third, that sentence is the entirety of the discussion about this point. It is certainly no model of Supreme Court advocacy to just throw out phrases like "fatally flawed" and "historically unsupported" without giving a little flavor of why you think that's so.
The textual discussion (admittedly without having read the whole thing) looks like it reads much more smoothly, but this simply is not a "model brief" in the Supreme Court.
I never thought about it, but until now I never pondered whether I could purchase an AK (or at least the semi-auto-only version) with my 03 FFL. Where do I find such beasts? SKSes, on the other hand, no problem.
Yeah, I just want one of those cool giant camo trucks that I see the guard guys driving down the interstate!
Anyway, militia don't carry WMD's. WMD's are weapons that the state uses to commit genocide.
In their press release, SAF says:
Can someone explain to me how Congress can abolish the militia? Isn't the militia "necessary"? I think the 2nd Amendment requires the militia. No militia, no free state.
Read the statute and BATF regulations. A Class 03 C&R FFL ("curio &relics" license -- basically vintage firearms over 50 years old) only gives you the right to directly purchase a C&R firearm in interstate commerce without the expense and hassle of a FFL-to-FFL transfer (it also gets you the dealer discounts at places like Brownells, Numrich, etc. and can pay for itself with just one order, but that's besides the point). The C&R FFL explicitly does not override the NFA or other Federal, state or local laws restricting possession of firearms. Meaning you cannot purchase a machinegun without going through the same hoops as anybody else. Nor can Heller get around D.C.'s handgun ban by getting a C&R license and purchasing a C&R eligible M1911 or Luger. Even the Congressionally-chartered Civilian Marksmanship Program cannot ship a WWII M1 Carbine to C&R holders New Jersey, as that rifle is specifically listed as a prohibited "assault weapon" under state law.
For the uninitiated: SKS's are a Russian 1940s semi-auto design (and all but the Chinese commercial ripoffs have really neat and "scary" integral bayonets), and the former east block has been exporting them from their arsenal storage depos for years to get cash. They're cheap and useful for hunting up to whitetail deer-size game, and in some parts of the U.S. are known as the "poor man's .30-30." Although given how expensive 7.62x39 ammo has been getting lately as Uncle Sam has been busily buying it up to arm the Iraqi army, I'm not sure how much the "poor man" can afford to actually shoot one anymore...