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.