Gun Rights: Thoughts on the Second Amendment (the Right to Bear Arms and Gun Control) and What it Really Means
THE SECOND AMENDMENT in really tiny letters
AS THE TITLE SAYS, this hub is mainly a thought piece. While I will pull some ideas from historical documents, unlike most of my Hubs, where I try to offer hard facts to back up my claims, this Hub will primarily consist of logic, observation, and opinion for the obvious reason there aren't a lot of cold, hard facts to reference other than the empirically derived indirect correlation between the amount of gun regulation and death by gun.
WHAT DOES THE 2nd AMENDMENT ACTUALLY SAY?
WELL, IT DEPENDS. You have the version actually contained in the Bill of Rights, but then there is also a version that was ratified by the States.
First, there was the Amendment ratified by the States and authenticated by Thomas Jefferson, then Secretary of State:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".
Then you have the actual Amendment passed by Congress and signed by President George Washington, but never ratified by the States:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
As you can see, Congress made the actual Amendment much more confusing by inserting a comma between the words "Militia" and "being", as well as "Arms" and "shall". as well as capitalizing "Militia", "State", and "Arms". It also begs the question of whether the Second Amendment is even legitimate of not because the one passed by Congress was never ratified. I don't know if the question has ever been considered.. Does anybody reading this know the answer?
IT IS AMAZING THE DIFFERENCE A COMMA CAN MAKE, ISN'T IT?
IN THE FIRST CASE, to me anyway, the Second Amendment would have said that the purpose of the "right" for "the people to keep and bear Arms" is for the establishment of a "well regulated [state] Militia". In other words, for there to be a State Militia, the central government may not prohibit citizens from bearing arms because without those arms, they couldn't bring them with them in the event of being called to state service. There is no mention about the right to bear arms being for personal self-defense separate from the Militia. If this had been how the 2nd Amendment read, then I would find it hard to believe that even Justice Scalia could have ruled the way he did relative to "personal self-defense. Having said that, common sense dictates that if you that the right to own "arms", barring other laws, they can be used for self-defence, but that wasn't the "reason" for the amendment.
In the actual version, the one thing that is perfectly clear is something is "not to be infringed", but, what is that and to what purpose? Well, it seems to me, as it did to the four Justices in the minority, that the phrasing still emphasized the role of the Militia and State as the purpose of the the 2nd Amendment and that role was not to be abridged. In the course of assuring that outcome, the right of the people to keep and bear Arms shall not be infringed as well because it is a necessary condition (given they supplied their one arms) to establishing a militia. The rules of English, even then, said that in most cases if the phrases between commas can be dropped without changing the meaning of the sentence, then they are explanatory only. Clearly, that can be done here.
First, dropping the first clause - "A well regulated Militia, the right of the people to keep and bear Arms, shall not be infringed."
Then, dropping the second clause - "A well regulated Militia shall not be infringed."
Damn commas! While the last sentence makes perfect sense and is in keeping with the intent of Congress, i.e. not to interfere with the States ability to protect itself, it doesn't reflect the rest of the story. That being, a state cannot constitute a militia without drafting citizens AND their weapons (which also has the advantage of not having to train them their use). Consequently, one reading of the Second Amendment could have been that the phrase "the right of the people to keep and bear Arms" (with only the "Arms" capitalized and not the "people") is definitional of what a "well regulated Militia" is.
But that is stretching it a bit. I think the comma between "Arms" and "shall" is there for dramatic effect as in "... the right of the people to keep and bear Arms (drumroll), shall not be infringed", a perfectly permissible use as well. This reading of the final phrase makes perfect sense in terms of both English and what people wanted at the time; meaning by prohibiting the federal government's ability to restrict firearm ownership, it guarantees the state's ability to defend itself from an overbearing federal government. Not said, it also allows the federal government to constitute an Army that might be needed to fight a war without having to provide the weaponry needed to arm its soldiers.
Likewise, what the States ratified had the same meaning as derived above, but stated much more clearly. In this case, the phrasing is "In order to have this" then "you must have that"; "in order to have" a well regulated Militia "then you must have" a right for the people to bear arms.
Either way, it would seem to me the emphasis is on the State and its Militia, with the vehicle to insure their existence being the right of the people to keep and bear Arms. However, that is not the way Justice Scalia and the other four Justices in the majority saw it.
THE SUPREME COURT SPOKE
IT WAN"T UNTIL 2008, in a 5-4 ruling, that the Supreme Court weighed in on the core on the core of the Second Amendment debate - the right "to keep and bear arms." I think the Heller case was supposed to deal with the "keep" part of the amendment, since that is what the D.C. law forbade.
To borrow a summary from FIND LAW:
"District of Columbia v. Heller,1 the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units.2 Moreover, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints.3"
However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and that is was within the meaning [of the Amendment for arms to be available for any traditionally lawful purpose], such as self-defense within the home. Moreover, this right applies, [via the 14th Amendment], not just to the federal government, but to states and municipalities as well. ...
... The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." [ed - the opposite of what I had suggested] Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule. [ed - the minority saw this differently in that the protection was for the state, not the individual, using the same history to support their view; however, the swing judge, Justice Kennedy, sided with Justice Scalia.]
Further, the Court distinguished United States v.Miller,4 in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes. ...
... The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty [ed - also the basis for applying the Second Amendment to the States as well as the Federal government]. 554 U.S. ____ (2008)."
FIND LAW also offered this set of references for the curious: "A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions includes: Staff of Subcomm. on the Constitution, Senate Comm. on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989)."
Essentially this says the activist conservative Robert's Court, with Justice Scalia as the front man rewrote the Second Amendment to read:
"A well regulated Militia, being necessary to the security of a free State, and for individual self-defence, the right of the people to keep and bear Arms, shall not be infringed."
In other words, Scalia created new law. The funny thing is, I don't think he had to; he simply wanted to in order to move his own agenda forward. His ruling against Washington D.C. could have easily been based on simple logic, inference, extension, and the original words alone; he didn't need to revert to non-American sources to support his opinion.
Until 2008, this issue was just a hotly contested debate with each State, municipality, and the District of Columbia setting its own rules regarding gun ownership, without an overarching federal intrusion into the parameters the state and other entities must follow. The Conservative Roberts' court changed all of that by taking an activist, broad-constructionist view and asserting the central government's right to tell each State what it may or may not do regarding the regulation of arms. Clearly, the Liberal wing of the Court believed this was obviously a State's Rights issue and was not willing to interfere; a very ironic turn of events, don't you think.
One aspect of their decision I do agree with - the application of the Second Amendment to the States and other governmental entities via the 14th Amendment. The operative phrase in that Amendment is "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" [July 8, 1868]. It is just the leap from "A well regulated Militia, being necessary to the security of a free State,..." to "... that individual self-defense was "the central component" of the Second Amendment right." that I am having a significant problem with.
I JUST FINISHED A WONDERFUL BIOGRAPHY on Thomas Jefferson by Alp J. Mapp, Jr. titled, "Thomas Jefferson: America's Paradoxical Patriot", which I highly recommend. In it you understand clearly that firearms, pistols and rifles, were ubiquitous in America, especially in the rural areas. Unlike today, they were a necessity of life, primarily to provide food, but also for self-defense, often from Native Americans who opposed the usurpation of their land. Life in the 1700s was not easy.
You also understand these Americans didn't carry firearms because they had a specific "right" to, they carried them because they were a necessity of life; a necessity that is not present today. However, there was another benefit for an armed community, and that was to allow the state for form militias to protect its territory or enforce its laws; mainly the former.
The idea of men coming together in a militia to protect the colony was in Concord and Lexington, Massachusetts came to mythical proportions, without being a myth but reality, when they gathered to oppose the British attempt to raid an armoury. From this beginning militias were used to oppose the British, Bunker Hill being the next most famous encounter.
In "Thomas Jefferson", Mapp describes, in quite a bit of detail, Jefferson's time as Virginia's governeor and his trials and tribulations during the American Revolution. From this narrative, you can understand where the words "well-regulated" in the Second Amendment came from. The war was almost lost because most malitia's weren't much better than disorganized rabble who came together on a temporary basis, hopefully, for a common purpose.
Because of this experience, Jefferson, and others, became strong proponents of states having "well-regulated" malitia's; those specific words were often used when referring to state military organizations. The need for the citizen to have a right to bear arms was not prominent in their reasoning, it was a given, at least in the material I have read so far. There was, however, a fear of malitias giving way to standing armies, a la the British Army; this was also a common theme as America was being born. But, nowhere in my readings to-date as the personal right to bear arms been referenced.
IN JUSTICE STEPHEN BREYER'S NEW BOOK "Making Our Democracy Work" he presents a section on Heller. The purpose of his book is to explain how the court works, not to argue one way or another about a particular decision, except for maybe decisions like Dredd Scott. What Breyer did make differentiation about is what parts of the decision process various kinds of justices put more weight on. He says all justices use the following tools to one degree or another, 1) history, 2) language, 3) precedent, 4) context, 5) statutory purposes/values and consequences, 6) comparative expertise, and 7) proportionality,
Even though Stevens doesn't say so directly, you soon come to understand that those people consider "strict constructionists" tend to favor tools on the lower end of the list while the more pragmatic justices take a more balanced approached using all of the tools as needed, with the weighting being case specific. Justices Scalia, Alito, Roberts, and Thomas fall in the former category while Justices Breyer, Sotomayer, Ginsberg, Kagan are in the latter; Justice Kennedy meanders back-and-forth.
So, what, according to Breyer, did the majority rely on in upholding Heller? First is History; not American history however, but British history. In order to support their view that the operative phrase of the 2nd Amendment is "... the right to bear Arms ..." and not " ... a well-regulated Militia ...", the majority needed to find historical references to show that the taking of arms from the citizenry was a principal societal concern. They found this relevant history in the 18th century writings of English legal scholar William Blackstone (1723 - 1780) and books/pamphlets reporting the fear of English Protestants of being disarmed by the Catholic English King in the 1600s. There were apparently no American historical references they could find.
From this historical English reference, the majority concluded the fear of being disarmed supported the idea that self-defense, both personal and collectively, was central to keeping ones arms for the Protestants, and therefore, presumably, Americans. This reasoning changed the purpose of the right to bear arms from only to support a well-regulated militia to both that and self-defense, an idea not mentioned in the 2nd Amendment.
From here, the majority employed the tool of "Values" in order to find the Washington D.C. fire arms law unconstitutional. The majority reasoned that handguns, which D.C. prohibited, were specifically suitable to self-defense because they are easy to: "store in a location that is readily accessible in an emergency"; "use for those without the upper-body strength to lift and aim a long gun"; they are capable of "being pointed at a burglar with one hand while the other hand dials the police"; and finally, they are not "easily ... redirected or wrestled away by an attacker." Because the majority believed the 2nd Amendment's central "Value" theory was self-defense and D.C.'s law defeats this value, it is, therefore, unconstitutional.
On the other hand, the minority looked at early American history and came to an entirely different conclusion, one that emphasized ".... a well-regulated Malitia ..." as being the central theme of the amendment with the "right to bear Arms" being the means to achieve this goal. Obviously, in this battle, the English won.
WHAT DO YOU THINK?
DO YOU THINK THE MAJORITY SHOULD HAVE USED ENGLISH LAW AND HISTORY TO BASE THEIR REASONING ON, RATHER THAN AMERICAN?
DO YOU THINK THE MAJORITY WOULD HAVE COME TO A DIFFERENT CONCLUSION IF THEY HAD IGNORED ENGLISH HISTORY?
© 2013 Scott Belford