Jun 172002

Two non-lawyers who have never fired a gun discuss the meaning of the Second Amendment.

  17 Responses to “2nd Amendment Smackdown”

  1. Preamble: We interpret the Constitution according to the plain meaning of the words, not according to "original intent"–as if every one of the Framers participated in some sort of collective consciousness–or as a "living document," or anything else. I view any other method as bad faith, so if you disagree here we will have to clear it up straightaway.

    The Second Amendment states that the right of the people to keep and bear arms shall not be infringed. It’s inescapable that the "people" means the people here, as it does everywhere else in the Constitution. The Amendment thus applies to individuals, all individuals, not just, say, members of a militia. Even Ira Glasser admitted, in an unguarded moment, when asked why the ACLU never defends gun ownership rights, that the Second Amendment applies to individuals.

    So the question is, what does the first clause, "a well regulated Militia, being necessary to the security of a free State," mean? I used to think it meant that the people need weapons to defend themselves from the government, but I no longer think so, for three reasons. First, that is a strange way to interpret "well-regulated," which in ordinary discourse, then and now, simply means "orderly" or "properly disciplined." Second, "militia," as used then, meant a fighting force assembled from the people; when the Constitution wants to refer to the national army, it says "army." Finally, there are other Constitutional guarantees against a rogue government–and as you point out, individual citizens with guns in their houses are powerless to defend themselves against a national army now, and were, I suspect, even then.

    I am now persuaded that the clause means only that you want to recruit soldiers from a population that knows how to handle weapons. Here is Hamilton in The Federalist on what a well regulated militia is: "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 would 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."

    So are you allowed to build nuclear bombs in your garage? Not if we consider the meaning of "bear arms." "Arms," in colonial times, signified weapons you can carry; for other weapons there was a separate term, "ordinance." Black’s Law Dictionary defines the word "arms" as "anything that a man wears for his defense, or takes in his hands as a weapon." The several references to arms in The Federalist clearly mean what a man can carry. So rifles, guns, automatic weapons, etc., are in. Tanks, nuclear weapons, rockets are out.

  2. First, I’m not clear (nor do you appear to be) on your distinction between "plain meaning" and "original intent." The plain meaning of "keep and bear arms" seems to be private citizens’ right to acquire weaponry; your argument that this actually only means weapons that literally can be carried, while convenient for purposes of solving the nuclear warhead problem (at least for a few more years), would appear to contradict it, since you can only justify it by violating your own rule and quoting Hamilton’s "original intent" for the word "arms." And that is not even to mention the fact that anthrax, to give just one piquant example, is easily "carried."

    I have no objection to your definition of "well-regulated militia" or "people," but I have no idea from your email how that’s supposed to work in defense of your new interpretation of the amendment. The language obviously refers to an orderly, well-trained group of private citizens, and just as obviously is saying that government cannot keep such private militias from training and acquiring weaponry, and the obvious reason for this is to prevent federal tyranny. Ergo, the obvious purpose of the amendment — the only purpose stated in the original language — is military defense against a putative oppressive army. Today, such a defense is only possible with far greater military might than human beings can carry on their person — which is to say, the amendment can no longer be followed, and certainly is not being followed, today.

    Actually, the more times I read your argument the more nonsensical it becomes. You define words like "arms" the way the framers meant them back then, not the way we use them now, but ignore the fact that they meant words like "people" differently than we do now ("people" back then, for instance, meant white males of any age, as opposed to now, when it presumably means adults of any race or gender).

    More damningly, you say you no longer believe "necesary to the security of a free state" means defense against government tyranny, but nothing you’ve written gives any credence whatsoever to this new belief.

  3. The difference between plain meaning and original intent is that, in the first case we interpret the words on the page, in the second we interpret what the people who wrote them thought they meant. The difficulty with "original intent" is that the Constitution is a committee document, and where intents differ, as they often do, whose has priority? Plain meaning, however, excludes anachronism. Original intent theorists ask questions like, why did Congress pass the 14th Amendment, and, what was the historical purpose of the Commerce Clause? Plain meaning theorists dip into history as far as is necessary to clear up the meaning of a word or phrase, and no further. It is in this respect that I quote Hamilton on the meaning of a "well regulated militia"–not "arms," as you erroneously write.

  4. I’m fine with plain meaning theory as opposed to original intent theory — but if we agree, for instance, that the phrase "the people" in the 2nd Amendment properly includes adult females and blacks, then the "plain meaning" of the amendment has clearly changed since the 18th century–i.e., the Constitution is a "living document" open to reinterpretation, yes? You can’t have it both ways; we either interpret the "plain meaning" of the framers’ sentences in the prose English of 2002 or that of the 1780s. Which is it?

    Either way, the basic issue here seems quite simple to me: the only conceivable reasons for owning weapons today are sportsman’s hunting and shooting, sheer love of collecting, defense of family and property against private crime, and to aid the commission of actual crime. The first three, at least, are fine with me; but none of these reasons are addressed by the "plain meaning" of the 2nd Amendment, in either the 18th century or the 21st.

  5. Interpreting "people" as white males is a vestige of original intent theory. It may well have been what the Founders meant, but it’s not what they said. In any case, one is obligated to interpret the document self-consistently, and even if one could justify that definition of "people" historically, it would clearly be vitiated by the 13th and 14th Amendments.

  6. In other words, in cases where the plain meaning of 1780 differs from the plain meaning of 2002, we go with the present. Fine. Please explain how the plain meaning of the 2nd Amendment has anything relevant to say about what weapons should and should not be legal in private hands today. The plain meaning as I now read it, and as you read it up until this afternoon, is that private citizens should be allowed to own weapons in order to form private militias to combat government tyranny. That leaves no Constitutional protection for gun ownership for any reason other than joining a white supremacist compound in Utah, and in my view, any other interpretation is simply a tortured evasion of an uncomfortable semantic truth.

  7. Now, shall we discuss what I actually said, rather than what you wish I said?

    To repeat: I do not believe that the Second Amendment confers on the people a right to arm themselves against the government. I used to think so, I no longer do. Please stop attributing this view to me.

    The clause "a well regulated Militia being necessary to the security of a free State" means that people have the right to arm themselves so that they will be prepared to join a militia if necessary. Such a militia would aid the national army, not oppose it. The clause refers to the security, not the liberty, of a free State. This is why I took such pains to define "well regulated militia" and quoted Hamilton at length on the meaning of the phrase.

  8. Okay, now I understand your new position. And it makes sense. The text itself can be read in at least two ways that would make sense under a "plain meaning" reading, but if we’re allowed to place it in historical perspective, it is true that your reading is entirely in keeping with the way citizens’ militias functioned back then. So let’s stipulate that your reading is correct and go from there. The next questions, it seems to be, are (in no particular order):

    One, how can we interpret "shall not be infringed" in any way other than what it says? Your trying to define "arms" strikes me as rather arbitrary: just for example, "arms control agreement" refers to nuclear arms. It seems clear that today’s laws, which don’t allow private citizens to own, say, machine guns and other fully automatic weapons that could kill 40 schoolchildren in 30 seconds during lunch hour, are commonsense restrictions on gun ownership that clearly aid public safety but just as clearly violate the 2nd Amendment.

    Second, the plain meaning of the phrase "orderly and well-regulated" would seem to support the gun control laws that I, most Democratic Congressmen and most American citizens support, such as a national database and harsh penalties, rather than disallowing them.

    Third, what about all the other legitimate reasons people today have for owning weapons: protection of property against crime, sport shooting, collecting, etc.? Can an amendment which allows private gun ownership for one now-obsolete purpose be said to nonetheless protect gun ownership for other purposes?

  9. All right, we’re getting somewhere. We agree that the Constitution has to be interpreted with reference to the plain meaning of the words, that the Second Amendment applies to individuals, and that the purpose of freedom of gun ownership, as stipulated in the "well regulated militia" clause, is so we have a pool of people who are experienced with weapons and prepared to join a militia. Good.

    Now we need to ask how, if at all, the "freedom to keep and bear arms" is limited. It is clear that the first clause limits this freedom in some way, otherwise it could be disposed of, and the Second Amendment could be written in the manner of the First Amendment: "Congress shall make no law…". So what are the limitations? I think there are three. One: arms only, as opposed to ordinance or artillery. The distinction was very clear in the language of 1780, and it leaves out tanks, for instance. Two: arms that are appropriate for a member of a militia, i.e. a soldier, to be acquainted with. This might allow grenade launchers but it surely excludes nuclear
    weapons and packets of anthrax. Three, arms that you can "bear," or carry. This leaves all kinds of things out, although less and less, surely, as time goes on. (I’m not at all sure category three is valid, but one and two will suffice.)

    However: in the categories that remain, like, say, ordinary handguns, no "infringement" is permitted. This means no national databases for my money. Keeping implies ownership and ownership implies purchase. I cannot regard forced registration, which interferes with one’s purchase rights, as anything but an "infringement."

    Finally, let me say that I agree with you that limitations on automatic weapons are violations of the Second Amendment. This means if you take the Constitution seriously you are obliged to oppose them, at least until the Amendment is repealed. You lose your right to argue about the Constitution unless you oppose all laws that you believe are unconstitutional. Otherwise you’re arguing in bad faith.

  10. Your new interpretation seems reasonable to me, with one huge exception. You note that the first clause is crucial, and does impose limitations, otherwise it wouldn’t have been written at all. But then you say that required registration and a national database violate the amendment by interfering with purchase rights, and don’t address stiff penalties for illegal gun usage at all. I still disagree with you here. As I noted earlier, the phrase "orderly and well-regulated," it seems to me, are strong words in favor of these types of laws, which do not prevent gun ownership at all, but merely help make sure that the population of gun owners is, as the amendment notes, orderly and well-regulated. After all the fumbling around we’ve had in this exchange, I think you’ve settled on a very commonsense interpretation of the amendment — and I’m even willing to agree that if people like me don’t want to see automatic weapons and the like in the hands of drunken yahoos in Middle America, we should fight for further legislation or an appeal of the amendment (there’s a lost cause for you), not try to pretend the amendment means something it doesn’t. However, personally, all I really want is to give law enforcement the ability to limit the damage guns do by being capable of effectively prosecuting illegal usage, and making it harder for large numbers of guns to find their way into criminal hands. And regardless of whether you agree with me that such laws would actually work the way I think they would, I’d argue that the amendment agrees with me on their constitutionality.

  11. The adjective "well regulated" applies to the militia, not to the people. ("Orderly" is my proposed definition and does not appear.) The purpose of the Amendment is to grant the right to keep and bear arms to the people so they will be ready to aid in national defense, i.e., "the security of a free State." It nowhere states or imples that the people are to be orderly.

    What the first clause really does is limit the application of the second clause only to certain *classes* of weapons–excluding nuclear bombs, to resurrect our shopworn example. In other words, it tells us what "arms" are. But we must take the second clause seriously with reference to the classes that remain. So if we decide that handguns are arms, as we have, then the right of the people to keep and bear handguns "shall not be infringed." Keeping and bearing implies ownership, and ownership, as the great legal scholar Blackstone pointed out long before me, has three constituents: acquisition (buying), disposition (selling) and use. Any restriction on the three, I think, constitutes an infringement on the right of ownership, and therefore an infringement of the right to keep and bear.

    My view on "stiff penalties for illegal gun ownership" can be inferred from the foregoing. I don’t think guns are illegal. But if you want to put people away for a long time for building bombs or manufacturing anthrax, fine.

    To anticipate an objection: An example of a restriction on use would be, say, a zoning regulation that my driveway can’t be longer than 50 feet. A law against firing a gun indiscriminately in the street is not a "restriction on use" any more than a law against using a car to mow down pedestrians. People obviously have the right not to be recklessly endangered, and ownership never implies a right to use what you own to trample the rights of others–according to me or Blackstone or anyone else.

  12. Well, I still do not feel that a database of registered guns would infringe either ownership or legal usage rights, and I don’t feel that the text supports your position. I can see that "well-regulated" may be said to only apply to militias, maybe — but if the purpose of the amendment isn’t about militias but about private citizens, then the phrase "well-regulated" would be pointless, and wouldn’t exist. Further, even following Blackstone, you haven’t shown me how registering guns and keeping an ownership database infringes people’s right to buy them, own them or use them. It only infringes their right to own guns without the government knowing they own them.

  13. This dog won’t hunt. Clearly "well-regulated" modifies "militia": this is just ordinary English grammar. The loose translation of the amendment is, "people are allowed to have guns so that we can scrape together a reasonable ["well-regulated"] citizens’ army since we might need one to help out with the common defense." "Well-regulated" is essential here. One can create a militia out of people who don’t know how to use weapons, but not a very orderly or well disciplined one. Therefore people need to own weapons so they can learn how to use them.

    As to the second point, are you seriously maintaining that, if I had to register with the government to buy toothpaste, that my right to own toothpaste wouldn’t be infringed? And suppose I decide to sell my gun. Presumably I have to report that to the government too–hell, I probably have to get a special license, according to you, right? Is that not an infringement?

  14. Even if we accept that "well-regulated" refers only to the militia that the people might someday form, that doesn’t speak to the question of what constitutes an infringement on buying, owning, using and selling guns. You could still do all those things in an environment which simply tracked them more effectively. No, your right to buy toothpaste wouldn’t be infringed if you were required to register the tube; but any congressman who dared to propose such a silly law would be subject to the will of his constituents during the next election. As for guns: neither I nor any national Democratic politician, so far as I know, wants to take away people’s right to buy, own, use and sell most guns. I don’t see how the language of the amendment prohibits being able to keep track of who has exercised those rights, however, so as to effectively prosecute those who go on to violate the law.

  15. You didn\’t really think you were gonna get away like that did you? First, I don\’t go in for weaselly language like \”even if we accept…\” We accept, in the absence of evidence to the contrary, which you have failed to supply, that \”well-regulated\” does indeed refer to a people\’s militia. The choices are to supply the contrary evidence or accept the argument. Period.

    On the main point, my question is simply, what gun regulation, in your view, short of outright prohibition, would constitute an infringement? If not a national database, how about a one-week waiting period? How about a month? A year? How about a check for a criminal record? A history of mental illness? Of drug use? Of temper tantrums in elementary school? I\’m not suggesting that you recommend any of these measures, I\’m asking if any of them is an infringement. If some of them are, I want to know which, and why them and not the others. If none of them are, then I see some difficulty in reconciling your conception of \”infringement\” with ordinary English.

    A side note: if I were an original intentist, I could make an excellent argument that the Second Amendment actually grants people the right to bear arms to protect themselves against a tyrannical government; several of the contemporaneous state constitutions say exactly that. But as a plain meaning man I am obliged to stick with the words, and I cannot read the words that way.

  16. I’d like to point out a significant flaw in both of your arguments, whether "original intent" OR "plain reading."

    The word "State". State then AND now refers to the components of the United [b]STATES[b]. It does not, in this context, refer to the Federal government, or the nation-state. Since the Federal government is charged with defending the UNITED States, what need for security would the individual States have, save for against the Federal government?

    Think about it….

    I do, however, support the distinction between "ordnance" and "arms", with this understanding – any weaponry that the government thinks is legitimate to use upon its OWN citizenry is legitimate for the citizenry to own. While you could argue that the government would be unrestrained in its use of weaponry to quell actual rebellion, I’m simply referring to the increasingly paramilitary nature of civilian law enforcement. The government considers assault rifles to be a legitimate means of law enforcement, ergo, they are certainly legitimate for civilain use. Ditto for tear gas, smoke grenades, sniper rifles, bulletproof vests, Armored Personnel Carriers and, armed helicopters, but not, to my knowledge, gunships. (Securing our borders against smuggling doesn’t count agains the gov’t.) Tanks, artillery, nuclear weapons, strategic bombers, and the like fall clearly under the STATES rights to keep, if they choose. The National Guard does NOT count as a "well regulated" militia btw, since all of its members are sworn to Federal service.

  17. To really understand what’s going on in the United States, Britain, Canada, and Australia today with regard to civilian weapons ownership and self defence, we need to see it from the globalist perspective.

    Under the fast-approaching, liberty-shattering ‘New World Order’ so beloved by Tony Blair, both of the Bushes, and the US and UK political elite, there will be NO personal weapons of any kind permitted, nor any ‘culture of violence’ [i.e. no potential future resistance].

    For a good introduction to the elite’s ultimate goals in this, from a U.S. perspective, see "GUN CONTROL AND THE NEW WORLD ORDER’ at http://www.survivalistskills.com/nwa.htm as well as ‘OPERATION GARDEN PLOT’ at http://www.survivalistskills.com/GDNPLOT.HTM and ‘THE PLANNED US AND CANADIAN CONCENTRATION CAMP AND DETENTION CENTRE PROGRAM’ at http://www.survivalistskills.com/camps.htm.

    The rational and normal mind recoils from the idea that a nation’s leaders might be at perpetual war with their own people in pursuit of some higher, global goal. But read "The U.S. Public Warms To The Idea Of Civilian Concentration Camps" at http://www.survivalistskills.com/CONCAMP.HTM [This is a long page, slow to load, but well worth it. Be sure to see the quotes and astonishing photographs at the end of the article!], and reflect on how consistently this occurs, and how easily the general public are pursuaded to applaud and agree with their own loss of rights.

    [for a similar perspective on the same process at work in Canada and the UK, see "How Canada Lost Its Liberties And Freedoms – And Few Cared!" at http://www.survivalistskills.com/CANLIB.HTM and "How Britain Legislated Away 2,000 Years Of Rights And Freedoms" at http://www.survivalistskills.com/UKLIB.HTM]

    Still unpersuaded? "TRAGEDY AND HOPE", by Professor Carroll Quigley, is a virtual ‘blueprint’ of the political elite’s game-plan for accomplishing their ‘New World Order’ by guile – and by force, where need be. Read the huge array of quotations from political and other leaders on that page, and ask yourself whether they have not already accomplished much of what they need to achieve in order to turn the world into a giant ‘global plantation’, where they are the unresisted masters.

    There’s a substantial archive of other fascinating and invaluable ‘New World Order Intelligence Update’ articles on the New World Order at http://www.survivalistskills.com/sect22.htm and archived also at http://www.rarehistorybooks.com/NWOLINKS.HTM. The ‘NWOIU’ site itself is currently down for substantial re-construction, but these archived articles are well worth reading.

    One extraordinarily interesting page, at http://www.survivalistskills.com/GUNQUOTE.HTM, provides a large number of famous and favourable quotations on the citizen’s right to keep and bear arms AND a warning from Britain on the results of surrendering that right!

    All of us will ultimately be the victims of this global drive to eliminate the means – and even the very thought – of self defence.

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