A Great Day for Freedom
Posted by Daren Jaques on June 27, 2008
I have now read the Supreme Court decision on the 2nd Amendment, and I am ecstatic. Individuals DO have a right to own and posess firearms in their own homes. Right on.
I don’t want to go into too much legal mumbo jumbo here, but this is how it boils down. The “militia” was a term that the framers understood to mean all able bodied men capable of defending the nation against foreign invasion or tyranny. Thus this right extended to anyone CAPABLE of military service, not just to anyone ACTUALLY serving. To me it is really plainly obvious. Liberals who tell you otherwise are playing fast and loose with history and statutory interpretation. Read the actual opinion for yourself HERE.
Okay, Bush has now bested the broken clock. Roberts and Alito made this ruling possible and they wouldn’t be there without Bush. If I traveled back in time, I’d vote for Bush again just to get this opinion. I didn’t think I’d see this day; in fact I thought I’d get social security reform before this. I’ve never been proud of my country before this ruling. Just kidding - [cheap Michelle Obama dig].
In closing, no gun-hater has EVER been able to explain to me why the framers of the Bill of Rights would’ve thought that they need a constitutional amendment to ensure the right of the military to have weapons. Think about it. Come on, liberals. Really? I mean REALLY, REALLY that’s what you think? ………….**Crickets**
June 27, 2008 at 1:21 pm
It was only a 5-4 vote, which is kinda scary. That vote probably bodes well for McCain, actually. The gun lobby has been kicking ass and taking names the last few years. There are only a few states left that do NOT allow a citizen to get a conceal and carry permit.. (Illinois, Wisconsin, and also DC… Not a state, I know. )
It was some of Gore’s anti 2nd amendment positions on guns that played a large part in him losing his own state, which cost him the election.
With this vote being so close, it may scare some folks into holding their nose and voting for McCain instead of sitting this election out.
June 27, 2008 at 1:35 pm
I’m not sure about that last paragraph. There was lots of concern that the federal government would curtail state militias. The Federal government didn’t care about a private citizen defending his home with a musket. But the Federal Government did care that a private citizen would take his musket, join a state militia, and overthrow the national government. The Second Amendment protects the individuals’ rights to join a state militia. Someone else can articulate my argument better than me.
June 27, 2008 at 2:25 pm
EW,
I don’t disagree with you that the constitution, as originaly written, does not contemplate an individual’s right to protect his home from criminals. That wasn’t a big problem then, and thus wouldn’t warrant an amendment. However, the amendment DOES secure the right of AN INDIVIDUAL to own and possess arms. The stated reason is the importance of the militia, but it is not limited in that scope. You could rephrase the 2nd amendment this way, “Because a militia composed of all able bodied citizens is important to a country’s self defense and freedom from tyranny, each citizen’s right to keep and carry firearms shall not be infringed.” Worded such, the right exists due to the importance of the prefatory clause, but the prefatory clause does not limit the right. In essence it says that the militia is the most important reason citizens shall have the right, but is silent on all other subordinate reasons why one might have a firearm.
I had a CON LAW professor at Drake who actually told our classroom that the 2nd amendment only protects the state National Guard’s right to “keep and bear arms.” I’ve heard other liberals say the same thing. It is patently false and amounts to an assertion that the framers thought it necessary to include an amendment securing teh right of the military to have muskets. Absurd!
June 27, 2008 at 3:24 pm
Dorf, true, a 5-4 decision is more likely to be overturned, but it is still pretty rare unless the decision ends up having unforseen social/political consequences. This decision will likely last at least 50-70 years or one full generation if it is overturned at all. This is a landmark case on an issue of first impression, and as such makes it more likely to stick around for a long time… I say, REJOICE, MAN!
June 27, 2008 at 3:55 pm
Oh, don’t get me wrong, I’m totally jacked about the verdict and I agree it will remain that way for a long time. Even still I think they GOP can use that close vote to show how important it is to elect McCain over Obama for the SCOTUS picks that may occur. It’s something that the vast majority of Americans support, but instead they’ll go after gay marriage, or something dumb like that. Stupid GOP.
Anyway, I am rejoicing about the ruling!!!
June 28, 2008 at 10:31 am
Daren, I think the issue is much closer than you say. It can only be resolved by looking at the preamble and the operative clause. That’s a murky business. There may be a best answer, but surely not a empirically knowable “correct” answer.
You take Justice Scalia’s side, who finds the scope of the operative clause to be larger than the purpose announced in the preamble. This is troubling to me.
I find Justice Stevens’ dissent more persuasive, both in principle and in practicality. He reads the preamble as stating a purpose of protecting state militias. The operative clause then announces a single right: “to keep and bear arms.” To bear arms had a distinct martial meaning in the late eighteenth century. To keep arms means possessing arms for the purpose of bearing them, a subset of the right to bear arms. Justice Stevens reads the amendment narrowly. This reading forecloses the common law right of self defense (a part of the criminal law) and the right to use arms for hunting (a right governed by property law). States, not the Federal Government, are responsible for property and criminal law. And gun control, outside of state militias, is an issue either governed by state law, or by modern Federal law using the Commerce Clause.
Practically, Justice Scalia’s opinion essentially created a new Constitutional right: the right to keep arms beyond the scope of state militias. How far this right goes, we don’t know. I don’t use judicial activism as a pejorative term. But this opinion was probably the greatest use of judicial activism since Miranda and the birth control cases. All those decisions announced new constitutional rights that must necessarily be regulated by the judiciary, not by democracy.
That’s not necessarily a bad thing. Some rights are better protected through the adversarial nature of the courts, such as protecting minority rights and free speech. Majority rule often fails to protect minority rights, but courts can.
Gun lovers cherish democracy and populism more than the average citizen. This opinion takes gun ownership from a democratic liberty to an individual right. The difference is subtle, and gun owners should be alert to the law of unintended consequences that this ruling will create.
June 28, 2008 at 2:01 pm
Well, after re-reading that comment, maybe I am a Burkean! You could be right, Daren. But we’ll let you-know-who decide…
June 29, 2008 at 12:57 pm
I do agree with the majority opinion, and not just because it was the result that I wanted. I think it is better reasoned. For example, imagine for a moment that the first amendment had been worded thusly, “Because of the importance of questioning the government, the right of free speech shall not be infringed.” Do you honestly read that to mean that the only kind of protected speech would be the kind that questions the government? I don’t. I see it as saying this, “since speech directed at the government is so fundamentally important, no speech at all shall be suppressed.” The danger is that the government would silence political speech by calling it something else. The same holds true for the second amendment. The antifederalists were NOT afraid of the states overthrowing the federal gov’t, EW, you’ve got your history backwards. They were afraid of a tyrannical FEDERAL gov’t. The antifederalists were largely behind the drive for a bill of rights, including the 2nd amendment. The 2nd amendment was a bulwark against a tyrannical central gov’t not an amendment to protect against civil insurrection. Furthermore, if it is viewed as protecting an individual, organized state army from interference by the federal government, that does not change the fact that the federal gov’t would still be vulnerable to insurrection - in fact MORE SO because an organized state army would be more capable of actual insurrection than a group of disgruntled citizens with muskets.
June 30, 2008 at 8:33 am
One other point - my view of the 2nd amendment does differ slightly from the majority opinion. Had I been on the court I probably would’ve written a concurring opinion instead of joining Scalia. I think a private right CAN be in connection with militia service. As I’ve discussed above the militia is the body of people capable of defending the nation. Therefore, as long as you are not preculded by law or disability, then as a member of the militia, you may own and carry a firearm. Your right to use it is not limited in scope to militia service, but your right to own and carry it is grounded there.
July 2, 2008 at 3:16 pm
EW, while you are not entirely wrong on the militia issue, the thought process of the Founders was not as simple on the subject as simply the right of the States to field militias. Several years ago the NRA loaded its guns (as you might expect) for this issue by funding some extensive digging into what we would now call “Legislative history” of the 2nd Amendment, and it appeared that many of the Founders had indeed articulated that the value of it lay in the ultimate power of the individual to act against tyranny, rather than in him being a mere pawn of his State and dependent on the decision of a sub-national polity to act. Your strictly-militia interpretation rather makes you look like a dang Reb if you ask me.
It’s strictly my own point of view, and not supported by any kind of academic research such as the NRA funded, but I have always felt the less-conscise but less-easily-misread language would be “A militia that can at least hit the broad side of a barn from the inside being pretty damned important, Congress shall not screw with Citizens’ access to arms.” It would have been nice if they’d gone on to nod to the extensive discussions about ‘Ultimate safeguard against tyranny’ which went into formulating the Amendment, but the Constitution is big on Delphic pronouncements and short on explanations in general.
Analytically, a State militia could as easily have become an instrument of oppression as the (virtually-nonexistent) Federal forces at the time the Amendment was enacted, so viewing the Amendment as a mere tool to protect the State from Federal oppression does not really add up. I think of it as a three-cornered arrangement rather than a two-sided one, with the Federal, State, and Citizen powers checking each other.
Finally, I would have to also say that viewing the Second Amendment as merely protective of a State right rather than an individual one is wildly inconsistent with its location in the BOR.
July 4, 2008 at 1:33 pm
Wildly inconsistent? When have I ever read a legal document to get an answer that’s “wildly inconsistent” with its purpose?
The Second Amendment, under Tanker’s and Jaques’ reading, would guarantee rights already provided by the common law: the property right to keep arms, and the right of self-defense under the criminal law. I really don’t see why the Framers needed to get the Constitution involved to protect a right that already existed.
The right in question was the state’s or peoples’ right of response to oppressive federal governance. Thus militias could be formed by the states. The individual right at issue is the right to participate in militias. That right was indeed in peril because of potentially oppressive Federal action.
It’s a fine line to argue that citizens can violently rebel against state or federal tyranny. Taken too far, the 2nd Amendment would appear to authorize the citizen’s right to rebel or terrorize.
The citizen check on state and federal power hasn’t found much traction in reality. The Black Panthers were a citizen militia. So were the citizens who participated in the Whiskey Rebellion. So were the WWI veterans who marched on Hoover’s Washington. They couldn’t claim authority to rebel under the Second Amendment.
I see my version as the cleanest interpretation, legally speaking:
Under the 2nd Amendment, individuals have a right to participate in state militias to check Federal power. Under the common law, individuals have a right to own weapons and use them in self-defense. The 2nd Amendment does not provide grounds for militias that aren’t state-sanctioned. Currently, the democratic process — not the judiciary — protects individuals’ rights to own weapons.
July 5, 2008 at 3:50 pm
Additionally, I am suspicious that Dumb Ass Tanker isn’t a dumbass at all! Imposter!
July 7, 2008 at 9:48 am
Well, EW, it’s just the name I use on various discussion forums so I stayed with it here for consistency, thanks to an earlier life as an M60 tanker before getting on the track that brought Daren, you, and I together.
The thing about “Already in common law” is a much more complex issue than you let on, you clever guy. Lawyers frequently misuse the term “Common law” to mean the freight of decisional law, which did permit the pleading of ‘Self defense’ but did not bear particularly on the means. The true meaning of the term actually goes back to the imposition of the same (originally statutory) law on Saxon, Briton, and Danelaw territory in England, not just some inchoate body of customary unwritten rules.
That point of rights being ‘already protected’ was indeed much of the center of gravity of debate about the need for a Bill of Rights, since one school of thought felt such individual rights needed to be enumerated to be meaningfully protected, while the opposing point of view was that identifying any of them specifically ran the risk of excluding anything that might be overlooked and left room to parse even the identified rights out of enforceability (which up until now had been the unfortunate drift of much of the Supreme Court’s Second Amendment jurisprudence, thanks to the peculiar wording of the Amendment).
And, while the duty to serve in a militia or posse comitatus was enshrined in common law, the right to own individual arms for any purpose other than fulfilling military obligations was not.
The famous (among archers and military history buffs anyway) royal law mandating practice at the butts may have informed the final wording chosen for the Second Amendment, in that it required individual weapon ownership and proficiency in order to provide a pool of shooters ready for service on demand. Of course that law had long since lapsed into an archaic oddity in Britain at the time of our Revolution as a relic of the Hundred Years War, and it required rather than allowed weapon ownership.
How have things been in the Shire since The Return of the King, btw?
July 9, 2008 at 8:57 am
EW,
I am wondering what you think of what Hamilton wrote in Federalist #29 when he said, “…if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.”
This quote comports exactly to my view of the 2nd Amendment, and roundly refutes the Justice Stevens view. This is a right secured to individuals as a bulwark against FEDERAL (i.e. standing army) tyranny. The D.C. gun ban is unconstitutional because it required you to keep your gun locked or disassembled. If tyrranical Feds kick your door in the middle of the night, how are you going to defend freedom?
July 9, 2008 at 12:05 pm
So a person, not acting under state or federal sanction, can respond to government action with violence? When is violence appropriate? When the FBI illegally wiretaps people like MLK? When the KKK, acting with tacit state approval, lynch southern blacks trying to vote?
My impression is, that following your reasoning, is that the Second Amendment protects a citizen’s right to revolt against at least the Federal Government.
July 9, 2008 at 1:04 pm
It doesn’t protect the right to revolt - only the right to keep and bear arms as related to a legitimate “revolt.” The 2nd amendment doesn’t actually protect the act of revolting or any particular violence, even if that violence is in response to actual tyranny. But it does prohibit the government from banning standard firearms.
What is your take on Federalist #29? Is it just irrelevant now? Has the constitution “evolved?” If you read all of Federalist #29 (which I have re-done today) you’ll see that Hamilton’s view of the 2nd amendment appears to be the same as mine. I was disappointed that Scalia ignored The Federalist, as it is the closest thing we have to official commentary on the U.S. Constitution.
As an aside, I will also add that Hamilton DID envision members of local militias getting together at least once in awhile for training purposes under the auspices of some kind of leadership, but that has NOTHING to do with the fact that “the militia” was CLEARLY envisioned to be the general population armed with THEIR OWN weaponry. That is where both the majority and dissent get it wrong. Stevens would have you believe that unless you are acting with the militia, your right to “arms” is not protected. But if the feds take away everyone’s guns where the freak is your citizen militia going to get any? It is an absurd argument! The majority completely ignores the fact the service in the militia is in fact the primary reason the right is protected. Guns were so common to the frontiersman that they wouldn’t have anticipated any gun grabbing for any reason BUT tyranny. They wouldn’t have passed a law protecting the hunting musket any sooner than they would’ve passed a bill prohibitng fish from riding bicycles.
Lastly, Hamilton also says in #29 that the right to keep and bear arms will not only help the “common defense” but also help protect the “internal peace” of the country. That sounds like a grounding of the right for defense against crime too, eh?
July 9, 2008 at 1:20 pm
Sorry, one more thing: Hamilton speaks for at least a whole page about how “well-regulated” DOES NOT MEAN fully trained as a soldier. He disclaims such notions as wildly impractical. He writes,
“to oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary to acquire the degree of perfection which entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.”
He says instead,
“Little more can reasonably be aimed at with respect to the people at large THAN TO HAVE THEM PROPERLY ARMED AND EQUIPPED…” [empahsis added].
July 9, 2008 at 1:50 pm
I have tried to stay out of a conversation clearly driven by two people with a far greater knowledge of the law than I could ever even image to have, but Daren made the one point I toyed with making a while ago:
“But if the feds take away everyone’s guns where the freak is your citizen militia going to get any?”
I can see it now…the government takes away the guns and prevents any from being sold. Then, for whatever reason, we need to revolt (think a third term of Bush or something as bad) but we have no guns. Now what? Do we go ask the government for permission to revolt?
me: ‘Can I please have gun?’
federal worker: ‘May I ask why?’
me: ‘So I can shoot you. A few friends and I were thinking of starting a revolution.’
federal worker: ‘Well fill out these two forms in triplicate. You can expect a response in about 4-6 weeks.’
July 12, 2008 at 2:28 pm
Hamilton’s view is obsolete. No militia of quasi-soldiers can stop the federal government. Period.
You say that the Federal Government can’t prohibit ownership of standard firearms. I say: A standard firearm–or 1,000,000 of them–can’t stop the federal government from engaging in tyranny.
The Constitution doesn’t evolve. Reality changes. Hamilton–the most farsighted of the founding fathers–couldn’t wholly anticipate the political, military, and industrial revolutions that changed the world after the Constitution took effect.
First, the quasi-soldiers that Hamilton envisioned are obsolete. In the early 19th Century, there was a military revolution consisting of Napoleon and the Prussian response to him. An army, under Napoleon, became an extension of national will. The Prussian response to Napoleon was to create a centralized staff system of highly-educated and competent officers, who could collectively out-think and out-fox an opponent.
Therefore, mass armies–led by highly trained and educated staffs–could effectively move hundreds of thousands of men to fight in the right place at the right time. (I would like to thank Dumbass Tanker for providing me with the The Dynamics of Military Revolutions, which informed my thinking here). A group of quasi-soldiers is no match for such a national army.*
Second, the industrial revolution allows those national armies to be equipped with increasingly deadly weapons. Artillery, cavalry, tanks, rockets, high explosive, aircraft, naval resources. A contemporary “well-regulated militia” would presumably have to be competent or familiar with all these weapons, to be effective against what you call “tyranny.” I take it that you don’t believe that the Second Amendment protects an individual’s right to possess these military weapons.
It’s foolish to imagine in 2008, a group of citizens drilling in the town square with pistols and shotguns in anticipation of federal tyranny. Those weapons won’t stop tyranny. Whether the Feds allow one to own pistol or not own pistols is irrelevant for militia purposes; PISTOLS WON’T STOP TYRANNY!! LOL
Americans fight domestic tyranny with democracy. It’s not my opinion. It’s been policy since the Gettysburg Address. Our Republic governs according to the national will. Any tyranny that flows from the republic is answered by the political process.
What’s left for the Second Amendment? It’s sole textual rationale– allowing militias to stop government tyranny — is outdated and irrelevant. Standard firearms won’t stop federal tyranny.
Daren says that the Second Amendment’s protects one’s right to own weapons outside of a militia context. One’s right to own weapons presumably extends to lawful uses such as self-defense and hunting. This expansive reading is not supported by the text of the Second Amendment, nor does Hamilton’s Federalist 29 (which discusses how individuals and militias assist the common or public defense, not private use of weapons).
Let’s leave the question of weapon ownership to the democratic process. If the government tyrannically takes your guns–elect a new tyranny that will restore your right.
* Except, perhaps, in a modern insurgency. But those insurgents would be using weapons (bombs, rockets, IEDs) not protected by the Second Amendment.
July 14, 2008 at 8:14 am
EW, I don’t have to disagree with much of what you wrote. It simply doesn’t matter whether the militia of the people can stop federal tyranny - the 2nd amendment still protects the right to firearms regardless of the effectiveness of said militia. Suppose we are plunged into a deep recession and our governments simply cannot afford to appoint counsel for all indigents… does that mean that the constitution no longer guarantees the right to counsel simply because it cannot be complied with? Perhaps that’s an unfair comparison, but it seems to me that you’re saying that since a militia of the people cannot stand up to the federal gov’t in any meaningful way, that the right no longer exists. That’s baffling to me.
July 15, 2008 at 10:12 am
Also, I would point out that the text of the first amendment doesn’t support blasphemous or shocking art being protected as “speech.” Do you then support the right of local governments and congress to suppress artistic expression since it is not covered by the first amendment?
That is no different than my argument. Caselaw has covered all kinds of forms of expression as “speech” despite not being overtly so. These other forms of speech are subordinate forms of expression, protected because of the great importance of political speech. The same is true of the 2nd amendment. Restrictions on hunting weaponry would violate the 2nd amendment b/c any hunting restriction would invariably infringe upon the right of the people to maintain their militia.
July 19, 2008 at 11:00 am
This should be my last comment on the subject. I don’t think we’ll convince each other. We disagree reasonably about the 2nd Amendment, and neither view would get us disbarred if we argued our positions in court.
I don’t see how rephrasing the First Amendment, or reading it broadly has any bearing on the Second Amendment.
I see the Second Amendment as a concession to Anti-Federalists who worried about a Federal standing army. State militias controlled against that.
Today, reasonable people don’t use the Second Amendment to justify participation in a militia, but to own a weapon for self-defense, crime deterrence, hunting, sport shooting, etc. Those are private, lawful uses, and I support that.
If the Second Amendment protected those rights, it should say so. State constitutions protected that right explicitly, such as Pennsylvania and Vermont.
As I stated earlier, the term militia is obsolete. Gun ownership should be a statutory, democratic right, not a judicially enforceable one.