The rights of the people: now available, for the first time, to the people!

Jonathan Turley writes a nice op-ed on the second amendment:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "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." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

I've always had a hard time believing that people who thought the right of "the people" was a collective right could be arguing in good faith--at least, not if they'd read the rest of the constitution. After all, no one would take seriously an argument that the right of "the people" in the fourth amendment "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was a collective right that could only be enjoyed if you joined the National Guard.

Turley is not the only liberal legal scholar who has turned on this interpretation, and it seems to bode a welcome retreat from the notion that the constitution means--whatever we think it ought to have meant. Having realized that a plastic constitution could also, horrors, be manipulated by people they disagreed with, the "living constitution" proponents seem to be retreating to the notion that constitutional interpretations ought to have a least a tenuous relationship to the underlying text. I'm not a constitution-worshipper, but I think society functions better if you change the rules by changing them, not by declaring that they mean whatever those in power say they do. Yes, I'm aware that this happens to some degree in every society, but the less of it the better, thank you very much. We needn't make the perfect the enemy of the reasonable.

Comments

What are you even trying to say? This is incoherent.

Posted by brad | October 4, 2007 4:43 PM

"living constitution" proponents seem to be retreating to the notion that constitutional interpretations ought to have a least a tenuous relationship to the underlying text

and ANOTHER strawman gets set ablaze. Please point me to your extensive series of sources that living constitution proponents (like my old lawprof Erwin Chemerinsky -- he's been in the news lately) previously believes that Constitutional interpretations need not bear even a tenuous relationship to the underlying text. Oh wait -- the detachment between text and meaning is done these days by the so-called conservative justices. Look into 11th Amendment jurisprudence.

what utter BS this post is. This is the kind of thing I see in comments at the Volokh Conspiracy, that end up being supported only by a few out-of-context comments made by various Sup.Ct. justices regarding the death penalty.

Posted by Francis | October 4, 2007 4:43 PM

Francis, I'd say the fellas who stated that people who grew wheat on their own land for their own consumption were engaging in interstate commerce pretty much divorced themselves from the underlying text, or simply invented a new language.

Posted by Will Allen | October 4, 2007 5:06 PM

I'm just waiting for the "conservative activist" judges and the evolved standards of decency they find emanating from the penumbras of the constitution.

And who could blame them?

Posted by ad | October 4, 2007 5:09 PM

brad, work out your remedial reading issues on your own time, ok?

Posted by JasonC | October 4, 2007 5:19 PM

I'm not a constitution-worshipper, but I think society functions better if you change the rules by changing them, not by declaring that they mean whatever those in power say they do.

So what's the role of the Supreme Court, then? In grade school, I was taught that the Supreme Court (among other things) was charged with "interpreting the Constitution" and evaluating the applicability of laws in light of their interpretation. You're crippling the Court and removing an important check on the Legislative branch if you remove the Supreme Court's role in declaring laws unconstitutional.

Given that the SC IS in fact charged with such Constitutional interpretations, it's inevitable that they will do so "by declaring that [it] mean[s] whatever they say it does." Thus the constant liberal/conservative and constructionist/activist tug of war in the SC nomination process.

Posted by liberalrob | October 4, 2007 5:29 PM

Liberalrob, perhaps it is inevitable that we will have justices who say their whim is law, but that is simply tyranny by another name.

Posted by Will Allen | October 4, 2007 5:44 PM

After all, no one would take seriously an argument that the right of "the people" in the fourth amendment "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was a collective right that could only be enjoyed if you joined the National Guard.

The 4th Amendment also doesn't say anything about military service, while the 2nd amendment does; so your attempt to analogize here is unfounded.

In my opinion, the whole problem with the 2nd Amendment is right there in its plain language, which Turley quotes: "a well-regulated militia" etc. It doesn't take a rocket scientist to figure out what the Founders meant; in those days, people needed to have guns and know how to use them in order to defend themselves. In the Revolutionary War just fought, many common citizens joined the militia, whether as official organizations of local units or in ad-hoc groups like the Minutemen. In any case, there was usually no time to train volunteers which end of the gun you point toward the enemy; it was far better they learn this during peacetime, so if an emergency arose where the militia was needed they would be ready to roll. Indeed the militia WAS very much like the National Guard of today: citizen soldiers who took some time out of their lives to show up in uniform every so often and practice soldiering in case they were ever needed.

Today, not everyone joins the National Guard, nor is it necessary that everyone know how to use a weapon for self-defense. The 2nd Amendment remains, however, and its provisions are clear. No one really any longer disputes the "right to keep and bear arms." What is still a matter of dispute is the underlying justification for that right: the "well-ordered militia" part. Would the Founders have agreed that people who NEVER were going to be part of the well-ordered militia should have the right to bear arms? How about people who were obviously sociopathic? How about criminals, should THEY have the right to keep and bear arms? I don't think the Founders would have agreed with that; certainly I myself do not. So we have passed laws regulating the right to keep and bear arms, and the Supreme Court has interpreted the Constitution in such a way as to allow those laws to stand.

Turley says:

"Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment."

Yes, and also considering the Framers traditions of a sense of personal responsibility and responsible, considered actions in life, it is clear that they would have viewed such ownership as contingent on RESPONSIBLE ownership. Just because you have a right to keep and bear arms does not necessarily imply you should have the right to keep and bear them irresponsibly.

Posted by liberalrob | October 4, 2007 5:53 PM

perhaps it is inevitable that we will have justices who say their whim is law, but that is simply tyranny by another name.

Name me any system of government that cannot be considered "tyranny by another name."

Any submission of the will of the individual to that of one or more others can be considered "tyranny." The critical difference is whether the tyranny is controlled and correctable in its excesses.

Posted by liberalrob | October 4, 2007 5:57 PM

ahh, good ol' Wickard v. Filburn, always a favorite for attacking them damn librul judges.

except:

a. The Court upheld a federal law in that decision, showing 'proper' respect for the legislative branch.

b. The federal law at issue imposed a cap on production of grain. One view of the case, therefore, was whether a farmer who grew both beef and grain could obtain a commercial advantage against farmers that grew one or the other, but not both, by excluding the grain delivered to his own beef operation from the cap. Answer -- no. The regulatory scheme covered all production, including intra-farm transfers.

Posted by Francis | October 4, 2007 6:03 PM

Yes, liberalrob, and when someone states that whatever they desire is law, then impeachment, or, if the power of impeachment is denied, violence, are the only actions which can correct. A justice who states that the law is whatever he or she claims it to be, or one who simply redefines words to the point of gibberish, which is not an unfair discription of many of our justices, ought to be removed, if a people are going to engage in self government.

Posted by Will Allen | October 4, 2007 6:09 PM

I spent 28 years bearing arms on active duty and in the reserves. Yet my home state says I can't carry a pistol unless I (1) know the serial number of the pistol I want to buy, (2) get affidavits from four residents in the same county, (3) pay a couple of hundred dollars for the permit, and (4) wait for the county judge to issue the permit allowing me to carry the pistol only on my own land, in a car as long as I am going target shooting, and on the target range, and then (5) buy the pistol.

If these sorts of restrictions were placed on the not-quite-explicitly-found-in-the-Constitution right to abortion, there'd be a hell of a fuss put up.

Posted by Rex | October 4, 2007 6:11 PM

So we have passed laws regulating the right to keep and bear arms, and the Supreme Court has interpreted the Constitution in such a way as to allow those laws to stand.

The SC has had little to say about the 2nd amendment, which is why the current cases out of DC are so interesting.

I think both sides are a little afraid of the Supreme Court putting forth a clear definition of their interpretation of the amendment.

Posted by Kevin | October 4, 2007 6:12 PM

liberalrob: At the time, "militia" simply meant "the set of all people who keep arms and train with them" and "well-regulated" meant "which trains regularly". In your defense, "infringed" meant something closer to "voided" than "in any way diminished" (the latter being how we use it today).

So, put into modern terminology, the Second Amendment would probably read,

"Given that it's necessary for enough people to be competent in firearm use to secure the liberty of the populace, the right of people to keep and bear arms shall not be eliminated."

Does a six-day waiting period eliminate the RTKBA? Probably not. Does a background check eliminate the RTKBA? Probably not.

Posted by Person | October 4, 2007 6:14 PM

liberalrob,

Many Liberals want to restrict gun ownership by private citizens without regard for their criminal record or psychiatric history. We have laws restricting both criminals and insane people from owning guns. Most of those who are against gun control aren't against these laws.

If all gun control activists believed as you do, we wouldn't have a problem. Most of those who are against gun control want law abiding citizens to have the right to own guns in a responsible fashion. The NRA is an advocate of gun safety, training, and responsibility.

I am not in the NRA but I know many responsible gun owners and, in fact, own guns myself. I believe the 2nd Amendment protects my right to own guns. I also find it incredibly annoying when lawmakers pass idiotic gun bans based on irrational criteria (like the so-called assault weapon ban).

I suspect that the Founders would have been happy for any responsible adult to own guns regardless of whether or not they would ever be part of the National Guard (or similar).

EI

Posted by Earnest Iconoclast | October 4, 2007 6:17 PM

Well, golly, Francis, if Congress then passed a law that stated people with low i.q.s were required to be sterilized, would the proper response by the Court be to show respect for the legislative branch? Paging Justice Holmes!

Francis, the point is that Congress has the power to regulate the interstate movement of grain, but does not have the power to regulate the production of grain. As much as Congress would like to rewrite the dictionaries, "production" is not a synonym for "commerce", and getting elected or confirmed does not change the meaning of words.

Posted by Will Allen | October 4, 2007 6:19 PM

1. On judicial activism. The thing that's gotten so screwed up is that we have this notion that it is somehow wrong for judges to declare laws (and gov't action) unconstitutional regardless of the plain text of the Constitution, and yet it is somehow appropriate for judges to declare laws (and gov't action) Constitutional despite the plain text of the Constitution. The fact is that "judicial activism" isn't usually when -as many on the left and right these days assume- a judge invalidates an act of government. After all, if it requires a strained reading of the Constitution and other source documents to justify the law, then justifying the law is the real judicial activism.
2. On the supposed obsolescence of the Second Amendment. Few people seem to understand that the word "militia" had a much different meaning in 1789 than it does now. Judge Kleinfeld of the 9th Circuit had an excellent discussion of this in his dissent in Silveira v. Lockyer.
3. On personal responsibility. Yes, the Founding Fathers had a belief in personal responsibility, and yes, they probably would have had a belief in responsible gun ownership. But liberalrob's post seems to suggest that responsible gun ownership is impossible if there is no need for a militia.
4. On the obsolescence of militia more generally. The reason why a "militia" was viewed as necessary had nothing to do with national defense- much like the rest of the Constitution, the 2nd Amendment was intended as a restraint on the accumulation of federal power. In other words, if the government was going to abuse its power even against just one individual, then it was going to have to be prepared to overcome a potentially well-armed citizen. Now, I'm not suggesting that there is at this moment a need to overthrow the government by force, or that suspected criminals should go down in a blaze of glory. But in the last 100 years, we've seen some pretty ruthless governments come to power in some pretty modern societies- the Second Amendment exists almost entirely for the purpose of defending against that contingency.

Posted by Publius Endures | October 4, 2007 6:27 PM

Exactly, Publius, the role of the Court is to make sure that good faith efforts to adhere to the text of the Constitution are made, whether the Court upholds or strikes down a law. That's it. Period. Of course, "good faith effort" is not a precise term, because precision is frequently not possible, but suffice it to say that when the plain meaning of words, in terms of their commonly understood meaning at the time of the document's ratification, are wholly ignored, that is illegitimate. Now, it would be nice if Congress showed more restraint as well, but people who are heavily involved in day to day partisan politics are to be expected to be lacking in restraint from time to time. People who have lifetime appointments are supposed to be more measured in their judgements. At least, that's the theory.

Posted by Will Allen | October 4, 2007 6:43 PM

US Const., Art. I, sec. 8:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...

Will, you may feel that only your interpretation of "regulate Commerce" is valid; others disagree.

Posted by Francis | October 4, 2007 6:48 PM

Also, the whole liberal/conservative divide is a fiction. Scalia agreeing with the notion that the Federal Government has the legitimate power to regulate the private production and consumption of marajuana is just as laughable as Ginsberg agreeing with the notion that a local government has the right to evict a citizen from his home, because the local government would prefer that there be people owning condos on that piece of land.

Posted by Will Allen | October 4, 2007 6:52 PM

liberal rob - "Interpreting the constitution", means figuring out its meaning, and how it applies to the current situation. Not deciding it means what you wish it had said.

re "The 4th Amendment also doesn't say anything about military service, while the 2nd amendment does; so your attempt to analogize here is unfounded."

The 2nd really doesn't say anything much about military service either as you yourself point out. The milita of the time (and the milita by law today) are not typically signed up for military service. Its all able minded men (or by law today most of them, with exceptions for people like felons).

More importantly the 2nd doesn't say anything about the right of the milita, it says the right of the people. The clause mentioning the milita provides justification for, not modification of, the other clause.

Re: "Just because you have a right to keep and bear arms does not necessarily imply you should have the right to keep and bear them irresponsibly."

True but not very relevant. No one is arguing for some "right to use firearms irresponsibly", or arguing that the 2nd amendment protects such a "right".

Posted by Tim Fowler | October 4, 2007 7:00 PM

Yes, Francis, it is your position that the word "commerce" is synonymous with the word "production". Well, if that is the approach that is to be taken to language, the fellas in Philly a little more than 200 years ago could have written the Constitution in a few sentences, along the lines of, "Congress can do whatever it wishes, because words mean whatever Congress says they mean, and the Court can agree or differ on an ad hoc basis." They then could have retired to the taverns and wenches. What a buch of putzes; they actually sat around and debated what enumerated powers Congress should have, as if words actually had definitions!

Posted by Will Allen | October 4, 2007 7:02 PM

I think that since "A well regulated militia, being necessary to the security of a free state..." should be taken to mean that all free citizens are required to be part of the well regulated militia, and because of that they should have guns.

after all rights come with responsibilities, right?

Posted by D | October 4, 2007 7:22 PM

Will,

first, do not presume to tell me what my position is when I haven't taken one. you don't know me well enough to do so.

second, the idea that growing wheat can never be commerce is just laughable. Drawing the line that the regulation of commerce permits regulation of wheat after harvest and shipping off-property but not before is utterly arbitrary and draws no support from the Constitution.

Posted by Francis | October 4, 2007 7:28 PM

Francis:

Drawing the line that the regulation of commerce permits regulation of wheat after harvest and shipping off-property but not before is utterly arbitrary and draws no support from the Constitution.

In what sense is it arbitrary?

The definition of commerce is "the trading of something of economic value such as goods, services, information or money between two or more entities." If there's only a single entity involved, by definition it isn't commerce.

And how does regulation of the production of not cmomercially traded goods find support in the Constitution?

The Constitution only grants the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Therefore if it isn't commerce, Congress doesn't (well, shouldn't) have the power to regulate it.

Note: I'm not arguing that Congress hasn't claimed the power to regulate production of goods that don't change hands, nor that the SC hasn't upheld that claim. I'm asserting that the plain language of the Constitution doesn't support that claim.

Posted by SG | October 4, 2007 8:03 PM

No, Francis, the act of growing a wheat plant is not an act of commerce, and it is purely intellectual dishonesty to say otherwise. The act of growing a wheat plant involves A) a grower, and B)a seed. Commerce involves two or more people.

Look, you were the one who described the law as a production cap, and maintained that the law was consitutional, thus implying that, somehow, the words "production" and "commerce" became synonymous. If you don't want people to make the statement I did, then stop adhering to the notion that a clause which grants Congress the power to regulate commerce between the states also says that Congress has the power to cap the production of a plant, because, no, the production of a plant does not in and of itself entail commerce between the states.

Posted by Will Allen | October 4, 2007 8:06 PM

To Francis, it is arbitrary to use the definitions of words to determine the meaning of a sentence. This is not harch criticism of Francis; adhering to this notion is pretty much a prerequisite to serve on the Supreme Court.

Posted by Will Allen | October 4, 2007 8:10 PM

This comment has been deleted for calling another commenter names. Its author is invited to revise and resubmit.

Posted by Francis | October 4, 2007 9:05 PM

The problem with the commerce clause is that it explicitly states that Congress may regulate commerce among the states. Growing wheat by itself is not interstate commerce. Any interpretation otherwise is just simply dishonest or moronic. However, courts for 70 years had been giving ridiculously broad interpretations of not only what is commerce, but what is interstate commerce. The court in the last five years has decided to restrict this in a significant way, which is a good thing. I hope it lasts a good long time.

Posted by Yancey Ward | October 4, 2007 10:02 PM

liberalrob:

So what's the role of the Supreme Court, then? In grade school, I was taught that the Supreme Court (among other things) was charged with "interpreting the Constitution" and evaluating the applicability of laws in light of their interpretation. You're crippling the Court and removing an important check on the Legislative branch if you remove the Supreme Court's role in declaring laws unconstitutional.

They taught you half the story. The Supreme Court, in performing its duties, may have to interpret the Constitution. But it is neither the sole nor the supreme arbiter of the Constitution.

From Marbury v. Madison:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges.

Yes, when saying what the law is, the courts may find that the law conflicts with the Constitution. However, all branches of government swear oaths to defend the Constitution, and all have a duty to legislate and govern only in accordance with the Constitution. Each must interpret the Constitution, and they may disagree. There is nothing in the Constitution that says the Supreme Court's interpretation trumps the President's and the Congress's. Just as Marshall wrote that there must be some power of judicial review or else the legislature will have practical omnipotence, neither can the judiciary say what the Constitution says and demand that the other branches submit to its will unconditionally. So when they disagree, the branches must understand that they have the power and the duty to use the means given to them under the Constitution to fight among themselves and, ideally, come to implicit resolution.

This is what the Marbury decision stood for. It did not take the Federalist view that the Supreme Court is charged with interpreting the Constitution above the other branches. This may be what the political establishment believed after Brown, but it was not so for most of our history.

Posted by Kwyjibo | October 4, 2007 10:25 PM

Yancey:

The problem with the commerce clause is that it explicitly states that Congress may regulate commerce among the states. Growing wheat by itself is not interstate commerce.

If it said that Congress may regulate commerce between the states, then it would be clear that it meant only commerce that crosses state lines. The use of "among" instead of "between," however, allows the interpretation that the power is to regulate commerce within the collective several states, without specifying whether the commerce must be between individual states or simply somewhere within the whole.

This is why you should not associate with anyone who says that "between is for two and among is for three or more."

Posted by Kwyjibo | October 4, 2007 10:30 PM

Damn- Yancey beat me to the punch on the whole "among the states" being the key qualifying language. You can't just pretend like there's a period after "to regulate Commerce." If Congress was supposed to be able to regulate all intra-state commercial, agricultural, and industrial activities, the phrase would have been "within the states", and not "among the states."

Moreover (and I posted something similar to this at Volokh on another issue), I've been confused since law school as to why any New Deal-era jurisprudence on federalism is entitled to any precedential weight, much less even more weight than the plain text of the Constitution. The reason I say this of course is that most of those decisions were closely related to FDR's court-packing scheme- in other words the Executive branch was successfully interfering with the judiciary's independence.

Finally, I just wanted to add one more thing about the 2nd Amendment specifically, and the Bill of Rights more generally. The Bill of Rights (including the 2nd Amendment) was the work of the anti-federalists, and should be viewed in that vein. Specifically, the anti-federalists insisted on the Bill of Rights as a guarantee of restrictions on the federal government's authority. To view the 2nd Amendment, then, as somehow being intended to actually strengthen the federal government's authority (by giving it access to a "well-regulated militia" ready to defend the federal government) is absurd. As I said above, the more likely understanding of the 2nd Amendment is that it was intended as a safeguard against excessive federal government power grabs and abuses against individual citizens.

Posted by Publius Endures | October 4, 2007 10:44 PM

Something I should have added in my discussion of "between" vs. "among" vs. "within": If the Congress was supposed to be allowed to regulate even intrastate commerce, the commerce clause would have just ended after "to regulate Commerce." After all, regulation of intrastate commerce combined with regulation of trade with foreign nations and "Indian tribes" would be regulation of all possible commerce. If this is true, then the listing of what commerce could be regulated would be superfluous. A commonly accepted interpetative rule is that, where a clause is open to two interpretations, and one of those interpretations would render other language superfluous, the non-superfluous interpretation is correct.

Posted by Publius Endures | October 4, 2007 10:57 PM

Off topic, but did anyone else laugh when they read the line "(T)his does not mean that Charlton Heston is the new Rosa Parks"?

Posted by 1 in a mil, no 1 in a thous, no 1 in 7 | October 4, 2007 11:28 PM

Publius, as an addendum to your last comment, I propose another interpretative rule that may or not be 'commonly accepted', but that should be one of the basis' for interpreting federal powers. Not only should the least superfluous interpretation be correct, but in the case of the federal constitution, (I personally would extend the principle to all constitutions - but that's just me) after, or even possibly before or in contention with the 'least superfluous' test, the most restrictive interpretation should also have added weight, supporting the principle of federalism in that all powers not explicitly granted the federal gov't are by default retained by the states - and that interpretations of the federal constitution should use that additional bias as a matter of course. As I stated earlier, I personally would extend that principle to the States, in that any powers not explicitly granted the state governments by their constitutions should then be, by default, retained by the people themselves.

Posted by West | October 4, 2007 11:47 PM

The 4th Amendment also doesn't say anything about military service, while the 2nd amendment does; so your attempt to analogize here is unfounded.

Well what if the 4th Amendment did? Or what if it said something like

"A well regulated bar, being necessary to the security of a free state, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, (etc.)"

Would you then believe that "the right of the People" applied to only lawyers?

the fact of the matter is this is all well-tread ground, and as Megan points out in this post, the "collective rights" argument, at one time the predominant argument, is in retreat, with fewer and fewer people willing to defend it any longer. It's played out. The individual rights argument is simply the more compelling argument. Reason has won the day.

Can we move on now?

yours/
peter.

Posted by peter jackson | October 4, 2007 11:47 PM

Most of the remarks here are based on a misconception caused by a misquote of the Second Amendment to the US Constitution. The Amendment that was signed by the Founders and ratified by the 13 states has a single comma in the center. The extraneous commas were inserted by the Leftists to confuse the issue.

Let us restate the Second Amendment as it was placed into law, "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." With the unnecessary, misleading and illegal commas removed, the sentence becomes quite simple. It is a main clause and a subordinate clause. There is nothing here to argue about.

Let me restate it in modern terms.
"The right of the people to keep and bear arms shall not be infringed, because a well-regulated militia is necessary to the security of a free state."

This is also quite clear; the freedom, to keep and bear arms, is an individual right. There are many reasons for supporting that right, but the one that the founders stated was that the militia, which the US Supreme Court has determined to be all able-bodied males between the ages of 16 and 45, is the final defense of the American Republic.

Also, the militia may find it necessary to overturn a tyrannical regime in Washington DC. The Declaration of Independence says that it is the right of the people to overturn tyrannies. What goes for George III in London, England may apply to an usurpatious regime in Washington DC.

It is this image that the Left fears so; that the people are a sovereign power; that they have the final authority. And that the government "derives its just powers from the consent of the governed."

Can you see why the Left lies about the Second Amendment and substitutes covert disinformation into our history books? It is to provoke the meaningless and confused discussions that you have been pursuing.

Posted by Louis Wheeler | October 5, 2007 12:12 AM

A good key to the meaning of the Second Amendment, when written, lies in the words "bear arms." If you interpret that phrase to mean only "carry arms," the amendment said that you could keep and carry arms, but said nothing about the use of those arms.

But if the Second Amendment is properly read as a militia provision, the amendment's phrase "bear arms" meant "render military service," the standard military meaning of the phrase. And that phrase tells you how the arms were to be used.

In the 18th century, if you wanted the words "bear arms" to mean something other than "render military service," it was necessary to add words that told you what that other purpose was, as in "bear arms in defense of self and for hunting." Absent such additional words, "bear arms" was invariably understood in its military sense.

The amendment, the context of which is military, has no words to indicate that any meaning of "bear arms" was intended other than the standard military meaning.

The Second Amendment was written to protect the state militias from being abolished by the federal government. It assured the people of their right to keep and bear arms in accordance with existing state militia laws, even if the federal government failed to exercise its constitutional power to provide for arming the militias.

Posted by Leif Rakur | October 5, 2007 12:59 AM

West:
I'm completely with you. In fact, what you describe should not even be an interpretive rule, but the logical consequence of the Ninth and Tenth Amendments. Alas, those amendments were effectively read out of the Constitution during the Progressive and New Deal Eras since they stood in the way of popular legislation and uses of executive power. In the 80s and 90s, the amendments made a comeback, and SCOTUS had a see-saw battle on whether they have any real meaning (Usery v. Nat'l League of Cities, Garcia, New York, etc.). Unfortunately, conservatism's recent shift away from federalism has pretty much left those amendments disregarded again.

In essence, someone wishing to use the concept of federalism as an interpretive rule will essentially be making an argument that the Ninth or Tenth Amendment should apply to the analysis. If you have a judge or panel who believes the Ninth and Tenth Amendments are essentially superfluous, though, your argument will fail.

Posted by Publius Endures | October 5, 2007 1:22 AM

The legal definition of the militia is found in 10USC311. It is current Federal law and was last revised in 1956.

"The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

There are quite enough idiots posting on this thread who think ownership of arms is tied to militia service. Now you know that almost all male citizens of the US are ALREADY MEMBERS OF THE FEDERAL MILITIA by statute. Current law has almost the same as the original Federal militia law passed in 1792 (which required all adult male citizens [members of the militia] to own a military rifle or musket). And btw the National Guard did not exist until 1903. The 2nd Amendment does not refer to it, OK? Its a right of the people, who make up the militia and offset the power of the Federal government with the private ownership of arms folks.

And the three statutory missions of the militia are found in Article 1 Section 8 of the Constitution. The Congress has the power to ...

"call[ing] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Which means current issue military arms are protected for citizens because they are necessary to perform these missions. Hard to imagine repelling an invasion without machine guns, isn't it?

It just is not that hard if you bother to read the Constitution. The 2nd Amendment protects an individual right, and limits to it must pass the highest standard of judicial review (i.e. strict scrutiny) which is what the plain meaning of the words "shall not be infriged" is.

Politicians hate the 2nd Amendment because the manner in which you interpret it clearly shows your attitude toward the people. If you trust them, then you believe they should have power - even the power to rebel. If you don't trust them, or have some agenda to hide from them, then you want them disarmed.

The NRA has 4 million dues paying members. NOW has 400,000, about the same as the ACLU. Which makes the NRA our largest national civil rights organization.

Posted by RKV | October 5, 2007 2:12 AM

Rex, those sound like pretty good rules your home state has. If you feel your constitutional rights are being upheld under that system, I'm okay with that. I'd prefer, obviously, to ban pistol ownership entirely, but given the political realities in the US, what you're describing seems like a reasonable compromise.

As for the abortion comparison, what you're comparing there is your decision about purchasing a consumer durable with a woman's decision about having a child. And, obviously, given what's happening when a woman is pregnant, bureaucratic delays in making the decision have some pretty serious consequences, rather different than the consequences of you having to postpone the gun purchase. Six weeks in the timeline of a pregnancy has a kind of different flavor than six weeks in which you have to keep looking at your favorite pistol in the shop window without being able to pick it up yet.

Posted by brooksfoe | October 5, 2007 4:45 AM

Politicians hate the 2nd Amendment because the manner in which you interpret it clearly shows your attitude toward the people. If you trust them, then you believe they should have power - even the power to rebel.

Personally, I don't trust the Crips. Maybe this means I am un-American?

Posted by brooksfoe | October 5, 2007 4:48 AM

The amendment, the context of which is military, has no words to indicate that any meaning of "bear arms" was intended other than the standard military meaning.

So what of the "keep" part?

The Second Amendment was written to protect the state militias from being abolished by the federal government. It assured the people of their right to keep and bear arms in accordance with existing state militia laws, even if the federal government failed to exercise its constitutional power to provide for arming the militias.

The Tenth Amendment did this, and your reading would render the Second Amendment unnecessary.

Posted by Kwyjibo | October 5, 2007 5:30 AM

Kernel of McArdle's argument (using that term very loosely): "I think X, therefore anyone that thinks Y is 'activist'!"

Never read this blog, but if that is what passes for argument, I don't think I'm about to start.

Posted by jpe | October 5, 2007 7:11 AM

The Tenth Amendment did this, and your reading would render the Second Amendment unnecessary.

I'm sure the 10th is a sufficient substitute. Yep, the famously clear 10th. That's why we have such robust 10th amendment jurisprudence.

Posted by jpe | October 5, 2007 7:22 AM

Personally, I don't trust the Crips. Maybe this means I am un-American?

If you believe that average Americans should be treated as though they were the Crips, then I'd suggest that yes, you probably are.

Posted by Dave | October 5, 2007 7:55 AM

I'm obviously a big fan of gun rights (even though I've never owned one). But this statement is irrelevant:
"The legal definition of the militia is found in 10USC311. It is current Federal law and was last revised in 1956."

The Constitution can't be amended by statute. If the word "militia" as used in the 2nd Amendment can mean whatever Congress says it means, then Congress can effectively amend the Constitution by statute. Under your logic, Congress could define "speech" as only "spoken word" and remove the written word from First Amendment protection.

Posted by Publius Endures | October 5, 2007 8:19 AM

Never said the Constitution could be revised by statute did I? What I did say was that since 1792 (ahem, about the time of the founders, eh?) that militia membership was (and remains) quite widespread, so that limiting gun ownership to the actual members of the militia would be useless for the gun banners. That said, its a right of the people, not a right of the militia.

Posted by RKV | October 5, 2007 8:43 AM

Under your logic, Congress could define "speech" as only "spoken word" and remove the written word from First Amendment protection.

I know what you're getting at, and the point you're trying to make is correct, but the First Amendment also explicitly protects not only Speech, but also the Press.

Posted by AK | October 5, 2007 9:34 AM

The term "well regulated militia" excludes govt organizations. Regulated in the late 1700s did NOT imply govt as it does today and that specific phrase was used to make clear that govt was not involved. (One of the more common uses of the term "regulation" in the 1790s was to refer to the process of adjusting a multiple barrel gun so all barrels shot to the same point.)

However, let's take the folks who believe that "well regulated militia" means govt, change the subject of the 2nd amendment, and see if they actually believe their theory of interpretation.

"A well-educated body of public servants being necessary to the proper functioning of govt, the right of the people to own and read books shall not be infringed."

Does that amendment protect the right of individuals outside of govt to own and read books?

BTW - The notion that "bear arms" implies govt military came from Gary Wills, who got it by translating the 2nd into Greek, where there is a phrase with that meaning, and then back to English.

Posted by Andy Freeman | October 5, 2007 9:39 AM

Fifty years ago when I was in grade school, we were instructed that the Supreme Court's job was to interpret the laws created by the legislature, to determine whether those laws were constitutional, not to interpret the Constitution to determine whether it was "lawful", i.e., in accordance with the immediate wishes of the legislature.

Posted by persiflage | October 5, 2007 10:02 AM

You guys are obsessing over "well-regulated militia." You're missing the context. In modern parlance the 2nd Amendment says: since we need to have a militia to have a free country, people can have guns. It doesn't say those people need to be in the militia, or that they need to train with the militia on a regular basis as was common in the 18th century.

A look at the history of the militia might be in order:
http://en.wikipedia.org/wiki/Militia_%28United_States%29

Well what if the 4th Amendment did [refer to some kind of service]?

Irrelevant, since it does not. And my argument is not that the 2nd Amendment no longer applies, since most people are not in the National Guard. I was trying to point out that the 2nd Amendment implies the right to keep and bear arms RESPONSIBLY, as would be done by a member of a "well-regulated militia." Someone who keeps and bears arms irresponsibly is not protected by the 2nd Amendment, in my opinion.

I have argued in the past that, rather than fighting the NRA over the right to gun ownership, we on the left should co-opt them by making them responsible for training and licensing all people who want to own guns. You have to have a license and show proficiency to drive a car legally, the same should be true for shooting a gun legally.

Posted by liberalrob | October 5, 2007 10:53 AM

There is nothing in the Constitution that says the Supreme Court's interpretation trumps the President's and the Congress's.

I'm sorry but I simply disagree. I think it's abundantly clear that the Supreme Court's interpretation of the Constitution is paramount. That's why it's called the SUPREME court. The President doesn't get to tell the Supreme Court how it should rule on cases. Neither can the Congress, if in the opinion of the Court the law enacting that opinion is unconstitutional.

Posted by liberalrob | October 5, 2007 11:11 AM

I would love to support a required gun licensing and registration system. Unfortunately, there are a lot of people out there who would use such a system as a step towards disarming the populace. Perhaps putting the NRA in charge of such a system might make it more acceptable as the NRA is unlikely to attempt to disarm people.

The current system in Texas works pretty well, IMHO. You can buy a gun and keep it in your house with relatively little oversight (assuming you're not insane or a felon). But to carry a weapon on your person, you must get a license and undergo training in both firearms proficiency and the law.

EI

Posted by Earnest Iconoclast | October 5, 2007 11:13 AM

"Supreme" modifies "Court".

The balance of powers works like this: The Judicial Branch rules on individual cases and the Supreme Court (and appelate courts) rules on Constitutionality. The Legislative Branch makes laws and funds the other branches. It also to some extent structures the other branches. The Executive Branch enforces the law.

A law can not be enforced unless all three branches participate. The Legislative Branch must pass the law (to be signed by the Executive). The Executive Branch must actually enforce the law. The Judicial Branch must hear the cases.

Ideally conflicts are resolved in the system, but a rogue branch could be reigned in by the other two to some extent.

EI

Posted by Earnest Iconoclast | October 5, 2007 11:18 AM

Tim Fowler:"Interpreting the constitution", means figuring out its meaning, and how it applies to the current situation. Not deciding it means what you wish it had said.

While I'm sure we would all like to assume that the Justices of the Supreme Court would all interpret the Constitution by the same standard criteria, I think it's pretty unreasonable to assume that they would do so without being influenced by their personal beliefs on some level. The mere fact that confirmation hearings are so partisan and acrimonious is testament to how much we trust in their impartiality.

No one is arguing for some "right to use firearms irresponsibly", or arguing that the 2nd amendment protects such a "right".

Oh yes they are.

Posted by liberalrob | October 5, 2007 11:22 AM

Liberalrob:
If that is what you are arguing for, I think you would find a surprising amount of support (or at least non-opposition) from the NRA, provided, of course, that there was a corresponding relaxation of some of the more burdensome existing regulations.
The NRA's position, and the position of most other pro-gun groups, has long been that responsible gun ownership is the goal, and that in the hands of a responsible owner, no firearm is inherently more dangerous than any other firearm; this is why they offer a variety of gun safety courses. Hell, they even make you pass a test (admittedly it's a joke of a test) just to use their shooting range in Fairfax, VA. Of course, you may have a different idea of what constitutes responsible gun ownership (even I disagree with them on some of that stuff), but they are very forceful in pushing their members to be "responsible" gun owners.

Posted by Publius Endures | October 5, 2007 11:22 AM

Title 10, Section 311 has two kinds of militia, organized and unorganized. The statutory membership in the unorganized militia is very broad, to include all men from age 17 to 45, (I will let you research whether this is inclusive, non-inclusive, or partially inclusive) women who are members of the National Guard, and persons to age 65 with prior service as an officer.

So if you want to deny the RTKBA to a citizen, (even if the citizen was a felon!) you would have to at least show that he/she was not a member of the unorganized militia per the statute.

But even if the statutory definition of militia was changed, the SCOTUS could continue to use the definition from the militia statue of 1792 as closer to the origional meaning or origional intent of the Founders.

I would support changing Title 10, Section 311 to extend militia membership and hence assured RKBA protection to all citizens, to include women, and people with no military service (say for example, retired police!) from 45 to past 65 years of age.

Posted by Don Meaker | October 5, 2007 1:06 PM

Andy, I have no idea where you (supposedly) learned your history. You are in error when you say "The term "well regulated militia" excludes govt organizations." Total BS. Total.

See also Article 1 Section 8, US Constitution.

"To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

Posted by RKV | October 5, 2007 2:01 PM

Of the three branches, the legislative is the preeminent. It can remove the executive and the judges from office, the converse is not true in either case.

Posted by Yancey Ward | October 5, 2007 2:03 PM

[/lurking] To RKV - This is just a nitpick, maybe, but it seems to me your citation of Art I Sect 8 at least partially supports Andy's point: "...such Part of them as may be employed in the Service of the United States,..." implies the Militia has an independent existance from that of the United States; and likewise the language regarding the States' responsibilities toward the Militia implies the Militia has independent existance from that of the States. If it is independent of both, the most likely meaning is that body of nearly all citizens as defined in the Acts cited above, and thus not a part of any government organization... in the same sense that when speaking of the citizenry of the U.S., one is not speaking of a govenment organization. [resume lurking]

Posted by Allen | October 5, 2007 3:27 PM

Allen. No it does not support Andy's argument (i.e. that militias EXCLUDE government organization). Not at all. Of course the militia has an existence independent of the United States (federal government). It is also a creature of the states' governments. Dual usage. Do actually read some of the history of our country, government and institutions before you make statements like that. That said, the right to keep and bear arms is a right of the people as individuals, not as members of a group or as paid employees of the government.

""Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People."
— Tench Coxe, delegate for Pennsylvania to the Continental Congress and revolutionary patriot 1788.

http://www.constitution.org/mil/cs_milit.htm

Posted by RKV | October 5, 2007 4:02 PM

Liberalrob- Of course justices decisions are going to be effected by their personal beliefs at some level. However if they start with the honest attempt to interpret the words, and original meaning of the constitution, you will get better and more consistent results, than if they start with their own beliefs and than try to find a way to twist the constitution in to supporting those beliefs.

"No one is arguing for some "right to use firearms irresponsibly", or arguing that the 2nd amendment protects such a "right".

Oh yes they are."

Maybe "no one" is to strong. I'm sure you can find someone arguing for a right to use weapons in strongly and clearly irresponsible ways, but thats a fringe thought that isn't really relevant to the argument. The normal owning and carrying of a firearm isn't really use at all, and certainly isn't irresponsible use. If someone wants to use a fire arm to murder, to rob, or just to carelessly shoot in a crowded area, than you arrest him and confiscate the firearm. You don't have to abridge the rights of ordinary citizens to go after criminals.

Posted by Tim Fowler | October 5, 2007 5:07 PM

There are lots of kinds of militias. For example, there's a "select militia", which is basically what we'd call a govt army today.

I didn't say that all militias are independent of govt control. I said that "well regulated" ones were.

Article I defines one kind of militia, and doesn't use the words "well regulated" so it's quite a leap to assume that they're the same.

And, if you insist that they're the same organization and that article I justifies controls, you've either got an interpretation problem or a supremacy problem.

Amendments trump the body if there's a conflict. And, it is generally accepted that every phrase has meaning.

If you're going to argue that article I allows controls, what does the 2nd amendment mean?

Posted by Andy Freeman | October 5, 2007 5:08 PM

> You have to have a license and show proficiency to drive a car legally, the same should be true for shooting a gun legally.

You don't need a license to drive a car legally. You only need one to drive a car legally on a public road. And, you don't need any license to own a car. And, you don't lose your license for unrelated crimes.

If you're offering gun licenses like we do car licenses, the vast majority of gun owners would happily accept.

However, our experience with gun licensing is very different. If you want to make gun licensing the same, go for it, but you'll be fighting gun control advocates.

Posted by Andy Freeman | October 5, 2007 5:13 PM

Note that even if "well regulated militia" was a govt organization (a select militia), it's easy to show that the 2nd is an individual right.

"Competent and educated govt employees being necessary to a well functioning govt, the right of the people to own and read books shall not be infringed."

Who will argue that such an amendment would not be interpreted as protecting an individual right to own and read books by folks who are not govt employees?

Posted by Andy Freeman | October 5, 2007 5:17 PM

During the period 1763-1775, the British did not attempt to interfere in the right of individuals to have arms for their own defense per se, but did frequently try to prohibit any effort to exert that right as part of a militia. The colonists protested that this violated their right to have arms, as per the English Bill of Rights of 1689; the English argued that the right did not extend to collective exercise. Since collective exercise of the individual right was the aspect that had been threatened most recently, it was reasonable to make a special point in the Second Amendment that the individual right to arms, disputed by no one, included use as part of a militia.

One might argue that the language in the Second Amendment went so far in that emphasis that it only guaranteed a collective right. In that case, however, the already-existing right of individuals "to have arms for their defense" still gets enshrined in the Constitution -- via the the Ninth Amendment, which says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Posted by Oildrilling Lunatic | October 5, 2007 6:44 PM

The 9th Amendment and $2 will buy you a cup of coffee. I truly wish it weren't the case, but the state of current Supreme Court jurisprudence being what it is, I'd suggest we hang our hats on the 2nd and not the 9th. More is the pity.

Posted by RKV | October 5, 2007 7:08 PM

Speaking of licensing, let's look at what we think that it does wrt cars.

We believe that driver's licenses address incompetence and unintended results. We don't expect them to stop folks from driving get-away cars.

Driver's licenses make sense because the problems with drivers are incompletence and unintended results. (Drunks don't intend to get into accidents - they're just less capable of avoiding them.)

Few of the problems with guns are due to incompletence or unintended results. Given that, why would one think that licensing would help?

If we can't reasonably expect licencing to help, what's the point?

Posted by Andy Freeman | October 5, 2007 10:42 PM

The Supreme Court has already ruled that states cannot legally license a right.

"A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.'
— MURDOCK V. PENNSYLVANIA 319 US 105 (1942)

Posted by RKV | October 5, 2007 11:58 PM

Only one problem with Murdock v. Pennsylvania - the US Constitution doesn't grant rights. It enumerates them. See the 9th Amendment.

Posted by RKV | October 6, 2007 12:00 AM

Brooksfoe: "Six weeks in the timeline of a pregnancy has a kind of different flavor than six weeks in which you have to keep looking at your favorite pistol in the shop window without being able to pick it up yet."

If one needs a gun for self-defense against an imminent threat, a six-week delay could be a life-or-death difference. There have been cases where a person threatened by an ex-spouse bought a gun, and used it within two days against a home invasion by the ex-spouse. There have also been cases where a person was killed during the waiting period to acquire a gun.

Posted by Rich Rostrom | October 6, 2007 4:52 PM

You want to understand what the framers MEANT or intended. Then do not use the DOI or the Constitution as your only reference material.

"No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government." - Thomas Jefferson

Need more? Research it yourself. I refuse to try and convice others. Better to let them find the truth on their own.

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