The Explainsies
Two entries on Crooked Timber touch on the suddenly popular question of gun control. The one by Scott McLemee is merely sophistical.
So what have we learned from this past week?
First of all, that when the Founding Fathers wrote about the need for a “well-regulated militia,†it meant they wanted a free market in guns with no barriers whatsoever to access. (“Well-regulated†being an 18th century expression meaning “not regulated.†The term “militia†is to be very broadly construed. Very, very broadly.) But such is stating the obvious.
This is several kinds of dodge. It’s far from clear that the framers meant “well-regulated” in the post-Progressive-Era political sense. Besides, people like McLemee aren’t arguing for stricter controls on state militias; they’re arguing for stricter controls on gun ownership. The Second Amendment specifically does not say that “the right of the people to keep and bear arms shall be well-regulated.” It says, rather, that the right of the people to keep and bear arms “shall not be infringed.”
Kieran Healy’s item eschews the mummery to interestingly rebut an argument by Eugene Volokh about Weber’s definition of the the modern state as ““claim[ing] the monopoly of the legitimate use of physical force within a given territory … the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the ‘right’ to use violence.†Kieran has the better of the narrow argument when he points out that, contra Volokh*,
Which is precisely what Volokh’s examples show: jurisdictions allow, laws recognize, and so on. It is this legitimacy claim that is behind the state’s labeling certain groups as terrorists, for example. Volokh goes on to say that his “point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.†Weber won’t resolve any detailed policy questions in that department, though his definition does make it clear that in a modern state the private ownership of weapons is something the state will certainly claim the right to regulate.
This is true as far as it goes! “In a modern state the private ownership of weapons is something the state will certainly claim the right to regulate” unless that modern state is a constitutional republic which has formally abjured its prerogative on that score, by inserting a provision into its founding document that “the right of the people to keep and bear arms, shall not be infringed.” Modern states have been known to regulate speech and the press, to conduct searches without due process and to subject people to cruel and unusual punishment. “Cruel and unusual punishment” is certainly the application of physical force; many states have claimed the right to use it. The particular modern state we’re talking about is forbidden from doing so in the document from which it takes its legitimacy.
So with the right to keep and bear arms. And yet. Verbal fencing aside, there is something distinctly different about the Second Amendment that bears discussing: it’s the only article in the Bill of Rights that troubles to justify itself as it goes. The First Amendment doesn’t bother to say why “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievance.” It just says, Don’t do that. The Eighth Amendment doesn’t explain what’s wrong with excessive bail; nor does the Sixth explain why it’s so important that the accused enjoy ” speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
That’s genuinely interesting. Surely someone has discussed the reason for the Second’s curious structure for reasons other than trying to explain the Amendment away. Why is the Second Amendment so weird?
Comment by matthew hogan —
April 20, 2007 @ 10:25 pm
Virginia Bill of Rights may help. Or it may not.
“13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”
Comment by Mona —
April 20, 2007 @ 10:46 pm
Matthew’s point is a good one, the tracking of VA’s language. But one other issue that is common to much legislation and series of same even about related matters is simply that endless dickering and squabbling can end up with compromise wording that doesn’t have a direct relationship to clear logic or reason, or continuity.
But I truly do not know the answer vis-a-vis the 2nd Am, and will be interested to see what others have to say.
Comment by rm —
April 20, 2007 @ 11:01 pm
I dunno, but I note that “the people” is a collective noun.
Individuals in the Bill of Rights are called a “person,” “persons,” “no person,” “the owner,” “the accused.” The people at large are called “the people,” as in #9 and #10. And #2.
Comment by Madeline F —
April 20, 2007 @ 11:28 pm
Good question, Jim. I wish someone had been liveblogging the Constitutional Convention.
July 30, 2:10: Hamilton v. hot. As are we all, hahah. Patterson still on about power to tax vs power of people; suggests guns for all…
Comment by Thomas Nephew —
April 20, 2007 @ 11:52 pm
Building on rm’s point, the ‘militia’ was an organ, or maybe better a tissue, of the constitutional body politic, similar to the jury in fulfilling a particular role in the affairs of the people’s republic. As I see it, the 2d amendment located the right of the people to keep and bear arms — a military term — in that purpose, not in a person’s right to have a gun with which to plink away at beer cans, hunt, or even to engage in personal self-defense. Those personal rights certainly exist; they just aren’t really in the 2d Amendment per se. Such gun ownership and use rights are thus more subject to ‘balancing’ needs, (such as the safety of others from personal lethal force) than many gun rights advocates concede. That is, they don’t enjoy the blanket protection that ’second half of the 2d Amendment’ supporters advocate.
But no doubt others will see it differently.
Comment by Elbowroni —
April 21, 2007 @ 12:52 am
One of the best arguments (can’t remember who made it) against the righty/schmibertarian interpretation of the second amendment to equate to “Anything Goes” is that it comes right after the first amendment. If they had intended “well-regulated” to mean “Congress shall make no law” they had a pretty good example of clear language to use one paragraph up.
Comment by Avram —
April 21, 2007 @ 3:04 am
Elbowroni, I remember reading somewhere that the Bill of Rights was ordered differently in its first draft, and some of the early justices had the habit of referring to the amendments by their drafted numbers rather than the final numbers we know them by.
Comment by William Burns —
April 21, 2007 @ 3:36 am
The United States has certainly not as a matter of practice forsworn the power of the state to regulate the private ownership of weapons, unless you want to argue that its perfectly legal for private individuals to own tanks, military aircraft, etc.
Comment by Dave W. —
April 21, 2007 @ 4:39 am
The idea that the whole thing about well-regulated militias is superfluous, as Mr. Henley would have it, is ridiculous from a Con Law standpoint.
There is a reason those words are there in the second amendment, and while the nature of “militias” may have changed, “well regulated” still means now what it did in 1791.
Comment by Dave W. —
April 21, 2007 @ 4:48 am
as Mr. Henley would have it
Or is he saying it is superfluous language? Upon review it is hard to tell.
At any event, the patents and copyrights clause gives the reason for the power to grant patents and copyrights. This justification language limits the power of the government. I would argue that in the Bill of Rights context, the “opposite” applies and that the justification language was meant to limit the scope of the right.
Comment by digamma —
April 21, 2007 @ 7:48 am
The 2nd Amendment isn’t just weird, it’s badly written. That comma simply does not belong after Militia.
Comment by Matt Stevens —
April 21, 2007 @ 8:12 am
I’d recommend Daniel Lazare’s 1999 article in Harpers, which puts the 2nd amendment in its 18th century ideological context, and also and also describes changes in the amendment’s language.
Madison’s first draft wrote: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” Note that the personal right to bear arms is put right up front, and while later drafts moved clauses around the wording remained consistent.
Comment by Thoreau —
April 21, 2007 @ 9:02 am
Good post, Jim. My views on gun ownership have changed during my life. The one constant has always been that I thought the second amendment was confusing.
Now, I’ve heard all sorts of people give all sorts of reasons for why it makes perfect sense once put in the context of the time, and if we all had a 1789 vintage dictionary and copies of some contemporaneous documents we could sort it out quite nicely. And these people can all explain to me that once you put the amendment in context it is clear that this was about state militias/unregulated personal ownership/the people’s right to overthrow the state/well-regulated personal ownership/insert preference here.
Let’s say, for the sake of argument, that one of those interpretations is indeed correct, and it’s everybody else’s fault for not having the correct dictionary and applying the correct set of historical facts. The fact remains that if it’s really that easy to misinterpret then perhaps it could stand a re-write.
Obviously any re-write should be submitted to a smart lawyer (several smart lawyers, preferably) to make sure that the wording will be interpreted the way we want it interpreted. But first we have to ask “How do we want it interpreted?” There are 3 common rationales for the right to bear arms:
1) An armed and ready populace that can be called upon at need to defend the country, in lieu of a standing army: I reject this one. Partly for reasons that Mona can expand on (opposition to compulsory military service), and partly because specialization is usually the best way of getting something done. If you want a military that is effective at what it’s supposed to do, get some people who are willing and motivated to devote significant time to training. Whether they’re reservists or active-duty, modern warfare requires people with adequate training.
It may work for Switzerland to have a nation of reservists, but I’d like to think that we can get by with fewer than 300 million reservists.
2) A right of revolution: This I reject. It boils down to “A right to have a civil war.” Compare Iraq and the Philippines. Compare the dissolution of Yugoslavia with the end of Jim Crow. I know which method I prefer.
3) Personal self defense against criminals: This one I firmly support. It’s a practical and immediately relevant rationale for owning a firearm. And it produces a natural answer to the question “How do you draw the line between handguns and nuclear weapons?” The answer is that if the police can have it, so can you. If the police need it to fight criminals, you should have the right to own the same hardware.
So you get a smart lawyer (not a crazy one) to draft something to the effect of “The right of self-defense being essential to the security of free people, the right of the people to keep and bear firearms and other police weapons shall not be infringed.”
Then you get the smart lawyer to revise it.
Comment by Brian C.B. —
April 21, 2007 @ 9:24 am
Garry Wills, a historian, er, armed with a Jesuitical (literally!) command of Latin and its derivative languages takes apart the Second Amendment and offers a political motive for its inclusion in the Bill of Rights.
http://www.potowmack.org/garwills.html
His NYRB contribution from 1995 smacks down a law review publication edited by some guy named Glenn Harlan Reynolds. So, Jim, you may want to check yourself for fleas if you keep this up. You’re too noble a blogger for us to picture you scratching yourself all the time.
The 18th century term “bearing arms” is exclusively a military term. That Patowmack Institute (http://www.potowmack.org/) links to studies documenting the usage. Arms, in its first form, meant shield, not sword or lance. The shield face identified the bearer by insignia, hence “coat of arms.” Bearing arms means signing up for a military service, essentially identifying oneself as part of an organized martial grouping that displays its allegience in dress and regulation. And, “regulation” meant something, too. It meant that there was a code of conduct and drill enforced on the unit and common throughout the military organization. No civilized, effective army could exist without one, particularly in an era in which the bayonet was so important. And, the Framers, in states, were surely quick to strip guns from those of whom they were politically suspicious. And, of course, Congress demanded, beginning in 1792, that that states report on the arms of their citizens, and insisted on a count of those considered militarily useful.
And, liveblogging the Constitutional debates would do you know good here. That focused on the Federal standing army, which (as Patrick Henry knew) would rob the funding from the states necessary their for militias. The Bill of Rights is a Congressional issue.
Generally, there was a fetish for an idealized pre-Norman England that animated much Patriot thought. There was a belief that militias had then been the perfect defenders, responsive, and uncorruptible. As a practical matter, actual Revolutionary War veterans knew that militias had, unsupported by Continentals, successfully defeated Regulars on only four occaisions during the whole of the War, and more often ran away in the face of the enemy, sometimes with disatrous consequences for Continentals (Camden) or snatching a technical draw from American victory (Guilford Courthouse). They had been essential at Kings Mountain, but had confronted only one Redcoat (the commander) 100 Loyalist Regulars (American Volunteers) and hundreds of Loyalist militia.
Comment by CharleyCarp —
April 21, 2007 @ 9:49 am
I liked Gary Wills’ book on the Second Amendment.
Taking off from the comment above about the First Amendment, what I find most interesting is the Conservative comfort level with all the restrictions on free speech etc that have been upheld. In the face of ’shall make no law,’ we have people who will talk about ‘fire in a crowded theater’ whenever I complain about restraints on speech, or who will grouse about the ban on state sponsored prayer for school children.
It’s be interesting to see a Venn diagram showing people who are happy to see political speech punished, but nonetheless think the hopeless language of the 2d Amendment is an absolute ban on state regulation of handguns.
Comment by CharleyCarp —
April 21, 2007 @ 9:52 am
14 wasn’t there when I wrote 15, and I don’t care what the timestamps say.
To clarify my 1st amd point in 15, and add to 13, you’d want to give the state the power to impose time, manner, and place restraints on gun possession, just as it can on speech.
Comment by CharleyCarp —
April 21, 2007 @ 10:05 am
I the course of thinking about those comments, I re-read Feiner. Which was worth it, and so I share it with y’all.
One question, though: What’s a ‘horse room’?
Comment by Kevin B. O'Reilly —
April 21, 2007 @ 11:05 am
Dan Polsby, Reason, 1996
http://www.reason.com/news/show/29865.html:
But in places where close attention is paid to what words actually say, the states’-rights reading of the Second Amendment has attracted surprisingly little support. After all, the Second Amendment does not say, “A well regulated militia, being necessary to the security of a free state, shall not be infringed.” Nor do the words of the amendment assert that “the right of the people to keep and bear arms” is conditional upon membership in some sort of organized soldiery like the National Guard.
Indeed, if there is conditional language in the Second Amendment at all, evidently the contingency runs the other way: “Because the people have a right to keep and bear arms, states will be assured of the well regulated militias that are necessary for their security.” Some version of this reading is supported by almost all of the constitutional historians and lawyers who have published research on the subject. Indeed, this view is so dominant in the academy that Garry Wills, the lone dissenter among historians on the proper reading of “the right of the people to keep and bear arms,” has dubbed it the Standard Model of the Second Amendment.
Comment by Dave W. —
April 21, 2007 @ 12:32 pm
Counterproposal for ray-ray:
The right of self-defense being important to security, arms use, ownership and/or control shall not be regulated in a way that puts an undue burden on keeping or bearing arms reasonably sized for such self defense.
Comment by Brian C.B. —
April 21, 2007 @ 1:14 pm
“The Standard Model” is NRA propaganda and meant to refer back to physics, in which the term is grounded. As I note before, “bearing arms” had an exclusively military meaning in the late 18th century, and militia’s were “kept” in the language of the day. “To keep [up] arms” was to be part of a military unit. Nor is “the people” synonymous with “individuals.” Nor is Madison’s original formulation, which included the refuge of concientious objection, consistent with an interpretation of individual gun ownership. Individuals can own guns and not require restrictions on military conscription (militia duty was compulsory in many states during the Revolution). I actually think that the academy is well-informed on this and that Wills’ arguments have been persuasive, incisive, and are generally esteemed. They have the advantage of not relying on a “reverse reading” of the argument. And, of course, if Congress had meant to shield the right of an individual to own a firearm capable of killing a human being in self-defense (not a fowling piece, say, or a complicated hunting rifle that might take five minutes to load, since you couldn’t keep the things loaded or the powder would degrade, and wouldn’t do much for you) they could have written so in very plain language.
As a matter of public policy, gun ownership might be desirable, particularly if the responsibilities of ownership required insurance, training, security, the sort of thing that we associate with automobile ownership. It’s foolish to even think about banning guns. Maybe, as policy, the minimal restrictions on ownership are exactly what we ought to have. But, that would require admitting that the Second Amendment meant what it said, read as written, no tricks. As we’ve seen, you can build a powerful, paranoid, rich political organization around Americans not bothering to learn their own history, or the history of their own language, or the history of American armed conflict and tactics.
Comment by Wild Pegasus —
April 21, 2007 @ 1:21 pm
It’s pretty obvious, looking at the history and wording, that the Second Amendment was put there to ensure that the military power of the United States was in the hands of ordinary people instead of a warrior class. These warrior classes, the standing armies, were an incredible danger to liberty, and the Framers knew it well. So, when smarmy social democrats say, “Oh yeah, do you think the Second Amendment allows you to own a bazooka?” the answer is a resounding “Yes!”
- Josh
Comment by Brian C.B. —
April 21, 2007 @ 1:26 pm
Kevin, I’m particularly impressed that the Reason article you cite uses two of the most misleading Framer (not really fair to call Henry a Framer, though) quotes marshalled: Patrick Henry, whose full quote reveals itself to be a complaint that Virginia, a rich enough state, can’t even afford to buy guns for all it’s militiamen, let alone, as he goes on to say, the uniforms and other accoutrements necessary, so how is it going to pay its Federal share for a standing army, too? (Hint: It won’t, and Henry wanted to make sure delegates to Virginia’s Constitutional Ratification Convention understood so.) And Madison’s quote is, actually, drawn from an entire, long paragraph describing the usefulness of organized militias in limiting the potential tyranny of government. In effect, Reason is dipping it’s toe into the debate, there, and shamelessly taking the NRA quotes without looking at context. And, it should be ashamed.
Comment by Madeline F —
April 21, 2007 @ 4:46 pm
Brian C.B.: Doh! Of course I knew that the Bill of Rights came along after the Constitution to patch up problems in it. The only excuse I can muster is that I was hypnotized by Alexander Hamilton’s hotness.
Comment by Kevin B. O'Reilly —
April 21, 2007 @ 6:04 pm
Dan Polsby is dipping his toe into the debate? What are you talking about?!
http://www.law.gmu.edu/faculty/cv/polsby.pdf
Here is Reason’s toe-dipping:
http://www.reason.com/topics/topic/163.html
Comment by Jesurgislac —
April 22, 2007 @ 3:46 pm
Thoreau: Personal self defense against criminals: This one I firmly support. It’s a practical and immediately relevant rationale for owning a firearm.
Exactly. It means the criminal burglarizing your house has a practical and immediately relevant rationale for owning a firearm and using it to kill you if he thinks you might be going for the gun you might own. And of course, because of the Second Amendment, he has no problem getting the firearm he plans to use to kill you.
The odd thing is how many Americans “firmly support” their right to be shot dead by burglars or muggers. Presumably they have a fantasy in which, threatened by a gun, they somehow manage to draw and fire, while the criminal’s bullets, just like in the nicest Westerns, all miss, or at least only deliver dramatic but easily fixed bullet wounds…
Comment by GEErnst —
April 22, 2007 @ 3:51 pm
I don’t see any mention of the cases in court where any real rights are decided.
Parker
Emerson
Parker
Nordyke
GEErnst
Comment by Randolph Fritz —
April 22, 2007 @ 6:12 pm
Hmmmm…(the following starts parallel to but diverges from my comments on this matter over at Making Light)
1. As far as I can tell, the Second Amendment was intended to protect the state militias; it simply would not have passed in the day if it been an unlimited firearms license–the Federalists never would have supported it.
2. The oldest usage of the term”‘well-regulated militia” I am aware of is from Fletcher’s A Discourse of Government with Relation to Militias, published in 1698. By “well-regulated militia” Fletcher meant universal conscription and military training. The Framers, in The Militia Act of 1792, also enacted universal conscription (a law largely honored in the breach) and added a requirement for members of the militia to arm themselves at their own considerable expense–a model 1795 musket manufactured in the Springfield Armory in 1792 cost $10.87, roughly 15 days of a carpenter’s pay in Massachussets at the time, or 25 days of an agricultural laborer’s pay. (Sources: rifle, Springfield Armory Museum web site. Historical wage data files at the International Institute of Social History’s site.)
3. There was a common-law right to own weapons back in Olde Englande, but they were always regulated. (Source: Cottroll’s book on the Second Amendment.)
4. Legally, I think a case for private weapons ownership, though probably not an unlimited right, can be built up out of some of the 20th-century liberal arguments on privacy and the fourth amendment; it’s a real shame that the Rhenquist and Burger Courts have been so hard on the fourth amendment. In terms of control of the authority of the universal state…Jim, I wish I knew. No, I wish we knew. Weapons actually may be more part of the problem than part of the solution; it is striking to me how many strong personal-weapons advocates I encounter on the net are also strong advocates of authoritarian policies at home, and imperialist policies abroad. So at least some armed citizens, rather than a check on government abuses, have actually abetted them.
Comment by Thoreau —
April 22, 2007 @ 7:29 pm
it is striking to me how many strong personal-weapons advocates I encounter on the net are also strong advocates of authoritarian policies at home, and imperialist policies abroad.
Indeed, it is quite striking.
Comment by Buzzcook —
April 22, 2007 @ 8:25 pm
The 2nd Amendment is the right of the individual states to have their own armies.
The second half of the amendment, “the right of the People to keep and bear arms shall not be infringed”, is there so the Federal government couldn’t disarm the states by disarming the individual citizens.
James Monroe was the author of much of the Bill of Rights as he was of the Constitution. He was very very leery of federal power till he got some of his own. The 2nd Amendment refects that as does the 10th and to a lesser extent the 9th.
I’m always kinda surprised that this take on the 2nd isn’t a bigger part of the debate. imho It lends itself to the pro-regulation side more than to the anti-regulation.
The anti-regulation crowd could get some milage out of it as well, but for some reason they seem stuck on the 2nd as solely a right to individual protection.
Comment by Randolph Fritz —
April 22, 2007 @ 9:24 pm
Buzzcock, #29: the Courts have generally taken that position on the second, though they also take the position that state armories are sufficient, but now that we have the Roberts Court, I suppose anything is possible.
Comment by Glen —
April 22, 2007 @ 11:25 pm
I dunno, but I note that “the people†is a collective noun.
Individuals in the Bill of Rights are called a “person,†“persons,†“no person,†“the owner,†“the accused.†The people at large are called “the people,†as in #9 and #10. And #2.
Actually, “people” is used elsewhere in the Bill of Rights to refer to rights clearly held by individuals. The best example is the 4th Amendment, which says the right of the people to be secure in their persons, houses, papers, and effects shall not be infringed. The 1st Amendment protects the right of the people to peaceably assemble and to petition the government for redress of grievances. (Yes, an assembly or petition requires more than one person, but the right to attend an assembly or start/sign a petition is clearly an individual right.)
The 10th Amendment says unenumerated powers are reserved to the States respectively or to the people, clearly indicating that States and people are distinct — and thus that people’s rights/powers are distinct from those of of their governments.
And the 9th Amendment says the enumeration of certain rights shall not be construed to deny other rights held by the people. If “the people” here meant their State governments, then the 9th Amendment would be superfluous because the 10th would say it all.
Comment by Gene Callahan —
April 23, 2007 @ 1:44 am
I’d guess that the reason the 2nd amendment justifies itself is that unlike in the case of, say, free speech, which is a necessary component of republicanism (the whole meaning of republicanism is tied up with the cives having a voice in the res publica), there was a debate in republican theory about whether an armed citizenery was a good or bad thing. Rome suggested it was good, Venice that it was bad. The Founders sided with Machiavelli and Guicciardini in deciding it was good, and they included an argument that used language “directly descended from Machiavelli” (Pocock).
Comment by Gene Callahan —
April 23, 2007 @ 2:00 am
Brian CB wrote: ““The Standard Model†is NRA propaganda…”
That slander coming out of Gun Crazy is thoroughly debunked here. The Standard Model is the result of several decades of serious scholarship, often done by scholars who were not “right wingers,” who were unconnected to the NRA, and who had no personal interest in which way the historical issue was resolved.