This post grows out of a discussion on Mano’s blog about gun rights and the US constitution. If you like, please read the beginnings of this discussion where it originated. However, in response to questions raised by EnlightenmentLiberal, I felt the need to write a comment whose length kept increasing. (No, Crip Dyke! Say it isn’t so!) Ultimately, I thought this history/argument was better presented as its own post here.
The real problems in the interpretation of the 2nd amendment can be found in a Commerce Clause case about the growing of wheat on private property and the anti-slavery reconstruction amendments.
The constitution was originally a federal-only document. Where the document spelled out the edges of the power of the Federal government to act, it was frequently unclear to what extent the area beyond the bounds of federal power was subject to state regulation or limit. Indeed it was standard practice for states to interfere in areas now seen as exclusively federal. Immigration, for instance, is seen as an entirely federal function now, but Oregon and a couple other states had state constitutional clauses prohibiting Black folk from entering their territories. For Oregon particularly, this required intrusion into Federal areas of power because it’s a coastal state and the Feds weren’t going to prohibit Black people from getting off boats that landed in Oregon’s ports. Likewise Citizenship, as state laws regulated who was (or could become) enslaved, and slaves could not be citizens. All slave states with ocean ports were similarly intruding on what we would now see as exclusively federal power.
In this context, and adding the context that the US could not afford a standing army of sufficient size to defend its comparatively vast territory, the 2nd amendment attempted to guarantee that there would be a militia for the federal government to call upon. Section 1 of the constitution provides that the militia and reserve militia of a state can be federalized at the whim of the federal government, but otherwise allowed regulation of the states to determine who could and couldn’t carry weaponry and for what purposes. The 2nd amendment clarified that this opening for state regulation could not go so far as to deny the federal government an available militia to be called upon in time of need.
EnlightenmentLiberal raised the point over at Mano’s blog that
The militia clause is not a limiter on the rights clause. The militia clause is mostly just political rhetoric. It has some substance in determining the effect of the law, but only very little.
While EL is absolutely correct that the initial clause of the 2nd amendment no longer limits the right in question, in its initial operation it clearly did: it helped define the scope of the right, which guaranteed sufficient gun ownership in order for a viable militia to be summoned whenever need might arise. The clause makes it clear that it was referring to militias as constitutionally identified even before the Bill of Rights was ratified (in Article 1, Section 8).
The framers were in a fix with this amendment because they could not specify the militia as those whose right to bear arms shall not be infringed, because while the constitution had identified and employed the concept of a militia, it hadn’t fully defined it. Moreover, slavery and racism created difficulties in persuading states to ratify language defining the militia formally: slave states resisted any definition that might include their slaves as militia members, even in other states. Preventing the right of the militia to bear arms, then, raised the possibility that States might define the militia as some sub-group of citizens too small to meet the needs of the federal government when time came to call up an armed force. This easily explains why the 2nd amendment is constructed in the manner it is: the “people” are guaranteed some level of gun ownership when a militia is not active so as to render the Article 1, Section 8 power to call up a militia meaningful, but “militias” are mentioned so that the states can be assured that even during times when an active militia is required, they are free to enact any legislation within their residuary sovereignty that does not interfere with the federally required militia.
So in this sense, the 2A played a vital role in empowering the federal government rather than limiting it. It was against the states that this amendment had its principal effect. But in this context it’s clear that this was not an individual right to arms. It is a federal right to call up armed citizens.
Note that while having a limp did not do anything to render a person less in need of a gun or less able to fire a gun safely or to fire a gun accurately, once a white man citizen of the US was no longer “able bodied” he was also no longer a part of the “militia”, and the ability of states to limit such a person’s access to firearms was then unconstrained by the constitution. Likewise the states were free to ban firearm possession or ownership by slaves (who were by definition not citizens). Other states banned firearm possession or ownership by Black men who were free and were citizens. It’s not even clear under what theory such men would not be a part of the militia save pure racism, but these provisions also went largely unchallenged and unremarked upon.
This is largely explained by the understanding of the 2nd amendment’s function: ensuring that a sufficient militia existed in each state to serve the federal purpose in a time of need. Gun ownership needed to be widespread enough among the people that the Feds had a functional militia upon which the President (when authorized by Congress) could call. But it needn’t be everyone. And it wasn’t everyone. The 2A was a balancer preserving the Federal power to call up a militia while otherwise leaving the states in charge of firearm regulation.
But after the civil war we passed the reconstruction amendments, including the 14th which barred states from interfering with individuals’ rights without granting that individual due process of law. In this new context, a generally applicable piece of legislation is not sufficient. The state is not only restrained from removing rights through Bills of Attainder or similar methods, but also through facially neutral methods that remove rights from an individual at a time over a large group (or even the entire citizenry).
This does not initially help in claims for gun rights, because the 2nd amendment was disempowering states and empowering the feds, not disempowering states and empowering individuals. Remember, guaranteeing individual rights against the individual states simply wasn’t the subject of the constitution before December 1865. It was about grants and limits of power to the federal government. To the extent state powers were limited in some places, it was in order to give power to the newly created federal government, not to guarantee rights to individual citizens. There simply is no room in this interpretive framework to see state power as being limited in an area without power in the same area being granted to the feds. Where federal power was limited, the limits might be defined by rights held by individuals or by rights defined by powers of the separate states, but the initial form of the constitution simply did not try to define anything about the relationship between the states and individuals: that wasn’t the role of the federal constitution. That’s why we HAVE state constitutions.
But in 1865 states were banned from authorizing or enforcing slavery within their own territories by the 13th amendment. Now we have the first instance of the federal constitution defining at least one aspect of the relationship of the states to their residents and citizens. Although this was a major innovation and a huge change from prior practice, because it happened so long ago present-day US citizens tend to think of this as unexceptional: of course the US constitution can modify the relationship between a state and its citizens. It’s been doing that for more than 150 years!
Given that, it’s understandable that people wouldn’t understand that the 2nd amendment could only have limited the rights of states if it were regulating the state-federal relationship. While it was obvious in 1790 that the federal constitution could only limit federal relationships (federal-state or federal-individual, but not state-individual), present-day constitutional literacy is not so precise, and the distinctions that were made from 1789 – 1865 are largely forgotten (or never known) by more than 300 million citizens. It seems reasonable, then, that there could have been an individual right against state firearm regulation written into the US federal constitution.
But this was anything but reasonable at the time.
Part 2 in the works.
“Every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”
“The United States in Congress assembled shall have authority . . . to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States.”
Under the Articles of Confederation, states were required to maintain well-regulated and properly armed militias, and Congress had no power to directly raise an army. With the Constitution newly empowering Congress to raise armies directly and mentioning nothing about militias, slave states wanted assurance that they would be able to keep their militias, which they found quite handy for rounding up runaway slaves. That’s why we have the Second Amendment; like the electoral college, it is a tool designed to maintain the institution of slavery despite the relatively small population of free people in slaves states.
To Crip Duke.
You’re reasoning is asinine and grotesque. I almost want to accuse you of willful dishonesty. Yet, I know that you’re better than this. Still, this is an extremely sorry display of a great mind.
Rather than getting to the heart of the matter, let me first try by clearing up some clear factual errors. I think that might be the best way to make progress.
You don’t know what you’re talking about. I tried to educate you in the earlier thread, and I linked to my document with all of my arguments and citations. It’s plainly clear that you didn’t rea dit.
https://docs.google.com/document/d/1Ak6bx8jyDxIlsLuFHHevw-4RQ7R5vJb15RtTNG5d79w/editBullshit.
https://en.wikipedia.org/wiki/Freedmen%27s_Bureau_bills> The Freedmen’s Bureau bill that passed in 1866 provided many additional rights to ex-slaves, including the distribution of land, schools for their children, and military courts to ensure these rights. The Freedmen’s Bureau Act gave ex-slaves “any of the civil rights or immunities belonging to white persons, including the right to…..inherit, purchase, lease, sell, hold and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms.”
https://en.wikipedia.org/wiki/Dred_Scott_v._SandfordDicta from the majority opinion: Bolding added by me:
> It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Also bullshit.
Not only did they believe that
everyoneevery white male had an inalienable right to own, possess, and reasonably carry weapons of war, the writers and ratifiers of the federal constitution also thought that they should be legally required to own and possess weapons of war.https://en.wikisource.org/wiki/The_Federalist_Papers/No._29> The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements, is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. […] Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
In case that’s not clear enough, the federal congress did exactly what I describe a few years later.
https://en.wikipedia.org/wiki/Militia_Acts_of_1792This law required every adult male in the whole nation between the ages of 17 and 45 (with the implicit exception of blacks and slaves) to personally acquire a laundry list of military equipment, including a gun and ammo of a certain specific kind.
I also have a primary citation (see my doc) that clearly shows that this act placed a legal burden on the individual, and the individual faced individual repercussions (IIRC a 1 dollar fine or some such in one state) for failure to acquire the laundry list of military equipment.
I also have a primary citation (see my doc) that clearly describes that most of the weapons of the militia (aka all able-bodied white males between 17 and 45, with some exceptions) were in fact the private property of the individual members of the militia, and that most of the weapons were personally stored by the individual members of the militia.
In short, you’re trying to redefine the word “militia” to suit your twisted arguments. “Militia” is simply a synonym for the body politic. That is its primary meaning, and that has been its primary meaning going back almost a thousand years.
https://en.wikipedia.org/wiki/Assize_of_Arms_of_1181To give a brief summary of one of my primary objections: You also have to ignore the entire legislative history of the bill of rights. The bill of rights was passed as a compromise in order to address the concerns of the anti-federalists concerning possible federal government overreach against the states and individual persons (with the exception of the 9th amendment, which was written to address the concern of the federalists that passing a bill of rights was a bad idea, but even then the 9th amendment is an express limit on federal government power). On your reading, the federal second amendment would a huge outlier in this context – it would be a grant of federal government power to act against the states governments. That’s a huge hit against your reading.
When one also brings in the indisputable fact that the right to own, possess, and reasonably carry weapons was seen as an inalienable right of every free English citizen, then your argument becomes outright ludicrous. The simple individual rights theory fits the evidence perfectly well, and it fits the plain text meaning perfectly well.
Whereas, your reading requires creative reinterpretation of the law. Don’t you realize that you’re doing the same thing of one of your most hated enemies – conservative “original intent” jurists!?
I’ll get to your second post in a bit.
Meh. Let me address your arguments more head-on.
I’ll admit, this is a rather curious perversion of the constitution and bill of rights. I’ve never seen anything quite like it. I give you credit there.
On my side, the federal second amendment is a mundane guarantee of individual rights against federal government interference, just like the other first 9 amendments of the bill of rights. Like the other first 8 amendments and the 10th amendment, it was written and passed in order to placate the concerns of anti-federalists about potential abuse from the federal government. Like the other amendments 1-8 and 10, the federalists argued that the bill of rights was unnecessary, because the federal government could not infringe those rights, because it lacks the specific power to infringe any of those rights, because the federal congress was governed by an enumerated powers doctrine, and none of the enumerated powers could be construed as violating those rights (or so goes the conventional argument by the typical federalist).
On your side, the federal second amendment is a huge outlier in the bill of rights. In a list of amendments that protect individual liberties against government interference, one of the amendments doesn’t deal with individual liberties at all, and instead describes the relation between the federal governments and the states, and particularly gives a power to the federal government to override laws of the states concerning regulation of individuals. As you aptly pointed out many times, this is almost unheard of, and this sort of federal law was almost non-existent until the federal 13th and esp. 14th amendments.
On my side, the plain text meaning is both obvious and simple. It says that the right of the people, not members of the militia, shall not be infringed. In other all cases of the bill of rights, “rights of the people” does not mean “rights of the people who are members of a select government core whose membership is at the arbitrary discretion of the government”.
On your side, you have a very interesting reading, I’ll grant you that. It’s nowhere near as bad as some readings I’ve heard, such as the extremely ignorant and foolish notion that the federal second amendment protects the power of the federal government and/or states to have police.
You still have to explain why the writers did not choose an immediately obvious framing, such as “because a well-regulated militia is necessary to the security of a free state, the federal congress may pass laws that forbid the states from unduly disarming their militias”.
Also, core analysis and argument is simply DOA – dead on arrival. It’s fundamentally flawed.
The constitution didn’t define “army” either. The term “militia” was a well-known and widely used term. You’re introducing confusion where there was none. It was not an arcane legal term. It was an everyday term. The constitution does not define the term “army” nor “militia”, and neither does it define “free speech” nor “vote”.
In short, you’re not familiar with the language and culture of that time, and you’re wrongly misinterpreting the text according to today’s definitions.
For example, the official guidebook to the federal constitution, the Federalist Papers, makes this point extremely clear: “militia” not a select corps of persons who are trained by the government, and instead “militia” is simply everyone. Again, this is what the word means.
https://en.wikipedia.org/wiki/Federalist_No._29> The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements, is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. […] Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
https://en.wikipedia.org/wiki/Federalist_No._46Bolding added by me:
> The only refuge left for those who prophesy the downfall of the State Governments is the visionary supposition that the Fœderal Government may previously accumulate a military force for the projects of ambition. […] [Suppose that] traitors should […] uniformly and systematically pursue some fixed plan for the extension of the military establishment […] Let a regular army, fully equal to the resources of the country, be formed; […] The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by Governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe […], the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
Do the math:
>> 25,000 * 25 = 625,000 = total population of United States that can bear arms.
>> half a million = 500,000 = total size of the militia
In addition to the bolded sections which already make it clear, this math also makes it clear that the militia is everyone who can bear arms. Again, the militia is not a subset of the population that can fight. It is the entire population that can fight, by definition. This is what the word means.
You’re simply using the modern non-technical definition of “militia” which refers to a small select corps of para-military persons, but that is not the historical definition. On this false understanding, your entire argument crumbles.
Your reading is unnatural, makes it a huge outlier in the bill of rights, and is unsubstantiated in large part by the actual historical sources. Whereas, the actual historical sources are plethora that individual gun rights are sacrosanct and inalienable, and it’s quite easy to see how this amendment was a guarantee of the pre-existing inalienable right.
PS:
I’m not sure where you got this nonsense strawman from. This is a rather shameful and obvious strawman of the respectable arguments for position of a guarantor of an individual right. Any respectable scholar will immediately say that, before the 14th amendment, the 2nd amendment did not restrain state action in any way.
Having said that, before the 14th amendment, the federal congress could override a state law that forbids private gun ownership according to the explicit power of the federal congress to organize, discipline, and train the militia. For example, the federal congress did pass such a law: the federal second militia act of 1792. This is a real law from history, which basically required every able-bodied white male between 18 and 45 to buy and own a gun, which was in effect for at least a decade or two. Admittingly, it wasn’t overriding such a hypothetical state law, and we don’t have case law from history where this actually happened. However, it seems pretty clear that the supremacy clause would take effect, and the second federal militia act of 1792 would trump any state law to the contrary.