Please Do the Right Thing

The Supreme Court has, for the first time in close to 70 years, decided to hear a case about the Second Amendment.

In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The problem with Supreme Court rulings, is that, as the article mentions further down, they very often find some way not to address the critical question.  That’s why landmark cases are rare, and most of the time the decision is about some crap about standing or jurisdiction.

But let’s assume for just a second that the Court actually reaches the critical question here.  I may just file an Amicus brief.

My feelings on the matter are quite strong.  I am strongly pro gun-control.  With no qualifications or reservations.  And people who make Second Amendment arguments against gun control just bother me.  Why?  Because in my opinion, the answer to the question the Court may face is an obvious and unambiguous one (even if you’re an originalist).  For reference, the text of the Second Amendment to the US Constitution:

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.

It’s one sentence.  That’s it.  If the right was intended by the framers to be categorical, unqualified and unequivocal, well, it wouldn’t be qualified and equivocated.  But it is.  See, there’s this lead-in, before the right: A well regulated militia, being necessary to the security of a free state.  What that means is, in no uncertain terms, people are granted the right to bear arms in the context of a well regulated militia.  Maybe (to you) there’s some ambiguity in what “well regulated” means, but it clearly means some sort of government regulation.  This is not a personal right, and it never was.  It’s a guarantee that at some point in the future, there won’t be legislation making it illegal for the army to bear arms.  You may ask, “then why is the right granted to the people?”  Because who else is going to bear the arms?  Rights have to be granted to people, it’s the only way it makes sense.  You can’t grant an Army a right as an abstract concept, you have to grant the right to the soldiers.  Even if you understand militia to mean a band of people who aren’t in the army, and thus the right was specifically removed from just army service (which it’s not, because that just not what the word militia means, or meant then), you can certainly argue that the constitution qualified militia with “well regulated” specifically to avoid unregulated groups like the Minuteman Project and random people unaffiliated with any group.  It’s still not a personal right, but a group right.  [Originalists, stop here.  Jeffersonians and those who love a living constitution, read on.]

As Rav Bina would say, “Az, I tell you stronger.”  A militia, as in non-army group of men, (if you accept that position, which I don’t) is not any longer necessary to the security of a free state.  We have four branches of the military, the coast guard and the national guard.  We have plenty of security, without every shmuck who likes to hunt owning a gun.  The fact is, guns in the hands of individuals are a much more serious threat to our safety and security than anything the framers were worried about (attack from England?  Roving bands of Indians?).  Allow “well-regulated militia” to include police (that’s just my opinion; the glow sticks in Demolition Man were kinda weak) and military (including coast guard and national guard) and get rid of every other gun.  Make gun ownership by someone affiliated with one of those groups difficult and onerous, with strict registration and lock requirements, and get rid of every other gun.  OK, so actually getting rid of the guns would be difficult, but at least make them illegal.

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30 responses to “Please Do the Right Thing

  1. I know very little about the voluminous 2nd Amendment literature, but I think you’re confusing two ideas: the idea that the people have a personal right to own guns and the idea that the right is unlimited. Almost no one argues that the 1st Amendment rights are unlimited, yet it’s important that we have those rights because it puts the burden on the supporters of regulation. In the same vein almost no one (except maybe the NRA, but they are no different than the ACLU on 1st Amendment issues) calls for an unlimited personal right, but it’s important that people have a right to gun ownership.

    Also, I remember reading that the purpose of the Militia language was to allow people to retain guns to protect themselves from our government, not England. The fact that we have an army is immaterial.

    Frankly I don’t care about this issue much politically, and that’s why I know so little about it legally. I’m sure LWY will have something interesting to say.

  2. Just my two cents;
    I live in a very rural country area, I have served the military for many years, everyone carries a gun. Guess what our violent crime rate involving guns is….. g’head ,,, guess….

    You can try all you want to “control” guns, then you will only have an unarmed citizenry and well armed criminals…
    good luck with that…

  3. Actually, we have 5 branches of the military. The Coast Guard has ALWAYS been a branch of the military.

  4. Damn you for posting this right before I have a deadline!

    To me, this is not a question about what the best policy is. It’s merely a question of what the States thought they ratified in 1791. What did they vote on? Once you answer that question, if you decide you don’t like the answer, then put your new position to another vote. That’s how democracy works.

    Just as a little start to that discussion, you should keep in mind that there was no “Army” per se in 1791. In fact, the country was averse to the entire concept of a standing army. John Adams feared a coup when he was president, and only commissioned an army under political pressure when it seemed like war with France was imminent – but once he completed his (controversial) peace treaty, he immediately disbanded it.

    I’m not sure if that fact doesn’t help Noyam’s point. Without a standing army, the citizenry not only had to be (armed and) ready to spring into the militia, but they also had to be able to protect themselves. It almost seems as though you could read into the Second Amendment as giving itself a way to become obsolete.

    The only way to really understand the original intent/meaning of those words is to conduct extensive research into what those words meant when they were drafted and (more importantly, in my opinion) ratified. Understanding definitions as they existed at that time, as well as historial context, are essential to the interpretation.

    (That’s what they voted on. That’s the rule. If you want to change it, bring a new rule to a vote. That’s democracy. “I like my constitutions dead.” – Justice Scalia. Hate his viewpoints all you want, but his logic is unimpeachable.)

  5. Nephtuli – I’m not confusing the idea, I’m saying they don’t exist. You can’t compare the first amendment to the second in the context of personal rights. The first amendment isn’t qualified the way the second is. The entire point of my argument is that no personal right exists. but it’s important that people have a right to gun ownership. I’m not sure this follows from your argument, and I really don’t think that’s true.

    TRM – I’m sure you will at least recognize that the low rate of violent crime in your area has many factors, of which “everyone has a gun” is a very small part. How many acts of violence would be prevented if the victim also carried a gun? I would say not many. It would just shift the act of violence outside the definition of “crime” and into self-defense. Still violence, though. And as for making for an unarmed populace, with an armed criminal element, well, that’s what a trained, armed police force would be for.

    John – Sorry. You’re right. My bad. No disrespect intended.

    Adam – I really didn’t intend for this post to be, or get into, an argument between originalism and so-called “activism.” Clearly, your opinion is that originalism is so right, there’s no argument for the other side. Thomas Jefferson would disagree (and so would I), but I really don’t want to get into that right now. The point of my post is that even from an originalist perspective, the argument for an unqualified and unregulated right to bear arms just doesn’t exist, and never did (and was never intended).

    Finally, something that Adam and Nephtuli both touched on: I remember reading that the purpose of the Militia language was to allow people to retain guns to protect themselves from our government. while that may be true, the ad absurdium conclusion is that the Constitution is supporting opposition to the very government it is creating, and creating anarchy, that anyone that doesn’t like what the government is doing, can take up arms for themselves.

    I think even the most government-wary of the framers wouldn’t support that idea, and that’s why “well-regulated” is in there. Surely the Constitution is intended to protect people from the government, and to provide a way to “overthrow” it: peacefully. With elections every two/four/six years and the right to seek redress. I don’t think violent opposition and violent overthrow were ever intended.

  6. One more thing:

    It’s merely a question of what the States thought they ratified in 1791.

    If that’s the case, then the right to bear arms should be limited to crude dueling pistols and front-loaded muskets.

    There is no way the states thought they were creating a right to carry semi-automatic handguns and assault rifles.

    (This, by the way, one illustration of why I disagree with the principle of originalism.)

  7. Lawyer-Wearing-Yarmulka

    Wow…where to begin…

    First of all, the 2nd Amendment applied only to the Federal government until the 14th Amendment was passed. Just wanted to mention that.

    Second of all, if it’s not a personal right, then it must be a right conferred by the federal government to the states so they may have a militia. But if that were the case, then that right should have been written in Article 4. The fact that it’s in the Bill of Rights, which is almost entirely about personal rights, has to say something.

    Third of all, the theory that it’s a right conferred by the federal government to states actually doesn’t make much sense, because, as we all know, the federal government is one of limited powers. They can’t confer to the states a power that they already have.

    We can argue about this until cows come home…

  8. Lawyer-Wearing-Yarmulka

    If that’s the case, then the right to bear arms should be limited to crude dueling pistols and front-loaded muskets.

    There is no way the states thought they were creating a right to carry semi-automatic handguns and assault rifles.

    Baloney. By that logic, the first amendment doesn’t protect radio or blogs.

  9. I was referring to crime (law and order, generally) when I said “protect themselves”, not protection from the government. And the key to my “standing army” point was not that there was a fear of the army, it was that the concept of armies and militias were different then than they are today.

    Noyam, you keep referring to “well-regulated.” Jou keep using that word. I do not think it means what jou think it means.

    Actually, your interpretation of “well-regulated” might very well be correct. But I can think of a few other meanings of that clause, and until you properly researched what the 1791 common interpretation of “well-regulated” is (um, it could mean that they all had no problem going to the bathroom?), the Second Amendment can be read in a host of ways. Seriously, could it actually mean that the purpose of the right to bear arms is to keep the militia in check? Maybe, rather than the *militia* being necessary to the security of the free state, it is that the militia is *well-regulated* that is necessary to the security of a free state. I don’t know, because I haven’t done the research, but, hey, that sounds plausible. After all, a simple, modern English interpretation of the Second Amendment can’t be correct, because it is grammatically flawed.

    FYI: I am pro-gun control, and would support a Constitutional Amendment.

  10. Noyam, if the technology changes and requires a change in the law, then you should change the law, not the interpretation of the previous law.

  11. LWY – I mentioned this in the post: it is a right conferred to the people that participate in the “well-regulated militia”, whatever that means. Each person has the right to carry the weapon, but only in the context of the militia.

    By that logic, the first amendment doesn’t protect radio or blogs.

    Or, by that logic, originalism is a bad way to interpret the constitution and govern. Either, or.

  12. Mmmmmmm… Baloney

  13. Lawyer-Wearing-Yarmulka

    Or, by that logic, originalism is a bad way to interpret the constitution and govern. Either, or.

    Or you don’t know what orginalism is.

  14. Lawyer-Wearing-Yarmulka

    Thomas Cooley on the 2nd Amendment:

    “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

  15. Or, by that logic, originalism is a bad way to interpret the constitution and govern. Either, or.

    I don’t see that point. Scalia is very strong on the First-Amendment. An originalist can apply the old rules to modern technology (this conversation is starting to sound familiar).

  16. (this conversation is starting to sound familiar)

    Hey, at least I’m consistent.

    Re: Cooley. I think it’s interesting that in support of a textualist argument, he says “implies” a lot there at the end to expand the rights for more generally than the text suggests.

  17. Or you don’t know what orginalism is.

    I really don’t want to get into an argument about the merits of various forms of constitutional interpretation. It would go back and forth forever, with no chance at any sort of resolution. It’s fruitless.

  18. A challenge: Noyam, I don’t think there is any intellectually honest justification for the so-called “living constitution” method of constitutional interpretation (and other similar methods by different names), except to call it what it is: Changing the rules in the middle of the game. I encourage you to try to convince me otherwise.

  19. Good Post. Hot topic. The Second Amendment most certainly was put in place to protect states (and their individuals) from the federal government itself (quite possibly a concession to the states to get/keep them on board). This makes the branches of the US Army irrelevant to the discussion or maybe (under an originalist perspective) even enhances the need for a right to bear arms. With that being said, it is a tough call on whether this right belongs solely to the states (and their militias) or to individuals as well. Both arguments have been fleshed out in previous comments. Noam makes a good argument based on a close reading and I agree with LWY that the context (Bill of Rights) is very important. I hope the Court addresses this issue head on while deciding the particulars of the case. I think the ambiguity of the last 70 years has brought out a lot of crazy people on both sides of the issue. The Court should answer this question in clear and certain terms. What I am looking for, and what I think the Court will do, is say that the right does extend to individuals but also allows the states to regulate the right in a way the state deems proper so long as the right is not entirely enfringed upon. I would hope that the Court could give examples of what would be legal state regulation (i.e. banning automatic assault rifles while not being able to ban firearms entirely) This opinion is pretty much our status quo but it would be binding and would hopefully give the local jurisdictions more guidance in establishing the local laws.

    Noam, while I can relate to your opinion, I don’t see it as a viable option. There are too many guns in America today (legal and illegal) and too many law abiding citizens who are passionate about the right to bear arms to outlaw them entirely. I would like to see the “right to bear arms” kept in tact with strict and enforcable gun control laws (mandatory background checks, banning certain types of weapons, gun safety/storage requirements etc.).

  20. Lawyer-Wearing-Yarmulka

    I’d love to continue this, but I’ve got a lease amendment to draft.

    I’ll stop by later.

  21. Uh, hello?

    I said this: I really don’t want to get into an argument about the merits of various forms of constitutional interpretation. It would go back and forth forever, with no chance at any sort of resolution. It’s fruitless.

    And your next response was this: A challenge: … I encourage you to try to convince me otherwise.?

    I decline your challenge. I’d rather not try to convince you otherwise, and be content in my opinion.

  22. This was a great post for a Wednesday. Unfortunately, today is basically a Friday.

  23. I decline your challenge.

    That’s because there’s no serious argument for it, other than it lets us do what we want to do.

  24. Forget about the mounds of evidence that suggests that guns serve as a crime deterrent because I’m sure that there’s mounds of evidence that suggests that it does not.

    But do you propose a ban on hunting as well? Meaning: are you recommending the abolition of firearms altogether or just certain types of guns?

  25. Noyam,

    I guess I was confused by this sentence:

    If the right was intended by the framers to be categorical, unqualified and unequivocal, well, it wouldn’t be qualified and equivocated.

    The fact that the right was not unequivocal says nothing about the existence of the right itself.

    Anyway, AFAIK you have a strong leg to stand on for your collectivist interpretation, as does LWY and Adam.

    I agree with Adam’s point that you cannot interpret the Amendment simply by reading it, because Originalists (your target audience in the first part of your post) require looking at the plain meaning of the text at the time of its adoption. Just like “Domestic Violence” no longer means insurrection, it’s unclear if “Militia” or “Well-Regulated” have the same meaning.

    Personally I’d much rather argue about living constitution vs. originalism than the second amendment.

  26. See, I agree with Noyam’s point, that if the language is qualified and equivocated, so too is the right contained within. My only concern is that we might not be understanding the language properly, and I don’t think that any of us are expert enough (or have enough time) to properly answer that question.

  27. Lawyers. 😛

    Anyway, from a common-sense standpoint and from the very few occasions where the opportunity to determine it has arisen, I would say that you’re wrong on this: How many acts of violence would be prevented if the victim also carried a gun? I would say not many.

    Just look at the VT shooting vs. a similar shooting a couple of years ago in the same state. In the first, a couple of students who carried stopped a shooter rather quickly; in the second, students weren’t allowed to have guns on campus and 30+ were murdered.

    If you want to make laws requiring people to get certified to carry after practicing (like driving), that’s logical; but I don’t think banning citizens from carrying does anything but allow criminals to take advantage of the average unarmed citizen with no fear of repercussion.

  28. Pingback: The Argument for a Living Constitution « The Noy G Show

  29. Pingback: The True Meaning of the Second Amendment « The Noy G Show

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