Legal Interpratation and The Second Ammendment July 18
I take it as a given that the constitution ought to be interpreted in much the same way as we interpret any kind of instructions. If you are house sitting for your professor saying that you thought it was a silly rule isn’t a valid excuse for ignoring his command, “Don’t let anyone else into the house.” On the other hand if his dog gets violently ill it is perfectly reasonable to allow the vet into the house since the situation is radically different from those the professor had in mind and he obviously doesn’t expect or want you to follow it in this case. However, this does not give you leave to supplant the professor’s judgment even if you believe it will better serve the aims he had in mind. Even if you know his intent in forbidding guests is to avoid scaring his dog it still wouldn’t be acceptable to invite over your friend who is really good with animals. After all if he had wanted you to use your judgment about who to invite he would have told you so.
So what does this framework say about the second amendment? In short: everyone is wrong. The collective rights theorists are blatantly substituting their judgment for those of the framers1 while the individual rights theorists clearly misconstrue the framers intent. Let’s start by explaining why the collective right theory is totally absurd since this is likely to be the most controversial.
As wikipedia notes the collective rights camp can be divided into two groups, those that merely hold that the right to bear arms is simply one “the people” have collectively and those who take the view that it is a right reserved only to “members of a well-regulated militia.” The first view is absurd on it’s face. What would it mean for the people as a body to lack the right to keep and bear arms? That we weren’t allowed to form an army? Who would take this right away? Is it just saying that we can always repreal our gun laws if we so desired? Presumably so long as the constitution is in force we can always vote to repeal any laws banning gun possession.
But perhaps I’m being unfair. Maybe the second amendment should be understood as guaranteeing states’ rights in a very narrow specific way. Namely the national government can regulate individual gun ownership as it likes but can’t prevent from maintaining an armed force. But that would be extremely odd. The Bill of Rights is almost exclusively concerned with the rights of individuals (with the tenth amendment split half and half) so it doesn’t seem plausible that the authors of this amendment thought it would be clearly understood as guaranteeing a right to the states. Moreover, even the sources that support a collective interpretation of the people understand that term to be referring to a national community. So while in some sense the second amendment obviously protects states rights it is implausible to think that it does so by granting states the right to keep an official armed force without ever mentioning the word state.
The militia interpretation makes little more sense than a the purely collective interpretation. After all if you understand the amendment to guarantee people the right to bear arms when the government lets them join an official militia then it guarantees them no right at all. Of course the government can choose to let people bear arms and join a militia if it so desires. Slightly more plausible is the theory that the second amendment guarantees people the right to be defended by an armed militia so that in the absence of a sufficient official militia people would have the right to arm themselves for the collective defense. This, however, simply isn’t historically plausible.
It is quite well documented that the second amendment was viewed as a protection against government tyranny when it was adopted. In particular the militia was to serve as an armed defense against government soldiers, e.g., a situation like the colonies had faced in the revolutionary war. Yet surely if citizens only reserve the right to arm themselves in the absence of an official army this provision would provide no protection against such an army. In fact any interpretation of the second amendment that allows the government to narrow gun ownership to a small proportion of the population or otherwise keep most of the personal weapons under it’s control would clearly be incompatible with this purpose. If only a few national guard troops, more a part of the army than a state force, get to carry guns the people could not possibly rise up against the army. You might disagree with the founding father’s judgment that an armed populance is a good idea or even a good protection against tyranny but as I outlined at the start this isn’t justification for ignoring the rule.
On the other hand the second amendment clearly doesn’t say that people have the right to carry arms for personal protection or sport shooting or whatever. One might try to argue that these are part of the ninth amendment’s unenumerated rights but they simply aren’t part of what the second amendment says. Thus while the second amendment might guarantee that most private citizens can keep and bare arms it doesn’t seem inconsistent for these arms to be regulated. So long as those laws didn’t substantially interfere with the ability of the people to mount an ad hoc common defense it seems that anything could go.
For instance a state could outlaw all handguns, and perhaps even hunting rifles so long as it allowed its citizens to keep assault rifles in their basements. One might require that all transport of weapons occur under lock and key or even have the state pass out the only legal weapons to citizens who participate in weekly militia drills. Heck, you could probably even limit participation to married homeowners over 25 without getting into trouble with the second amendment.
In short it seems pretty obvious to me that both sides in this debate are twisting the second amendment to suit their preferences. The second amendment is about arming the people for the purpose of the common defense against both tyranny and foreign aggressors. Pretty clearly this is an outdated notion and it should be repealed but it shouldn’t be left on the books and misinterpreted.
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Or the people whose representitives ratified it if you prefer. ↩
A good article you wrote there, but there’s a bit more to it than this. The founders intended it to be both about it providing for the common defense, and to allow people to defend themselves (whether against criminals, government, etc). In the debates, the primary concern was control of the militia, because that’s where most of the disagreement was among the founders. The idea that people could own firearms for self-protection against criminals or marauding natives was uncontroversial at the time, so it received no real debate. You have other right to bear arms clauses, which were contemporaries of the second amendment, to be found among the states. There are some, like Massachusetts, that explicitly mention the common purpose of ensuring the right. There are others, like Pennsylvania, that do both. Pennsylvania’s constitution says:
The right of the citizens to bear arms in defence of themselves and the State shall not be questioned
Which pretty clearly recognizes a personal purpose for recognizing the right.
Here is a law review by Dave Hardy that’s addresses the issue you’ve mentioned in some detail, actually quite a lot of detail; it’s rather long, but a really good read, nonetheless.
Hey, thanks a lot for the link (only skimmed it so far).
As far as the right to bear arms for personal self defense I agree that this was taken for granted at the time but that doesn’t mean that is is protected by the second amendment. In particular I think the fact that Massachusetts and Pennsylvania explicitly mention that individuals have a right to bear arms in defense of themselves is actually an argument in my favor. By negative implication the fact that the second amendment did not choose to include similar language but did choose to include language about militias suggests that it does not protect the right of people to own weapons for personal defense.
In fact the excellent article you linked tells us that Madison considered a similar proposal from Pennsylvania when drafting the bill of rights so we can’t ascribe his failure to mention “for personal defense” to a mere oversight or belief that it was implicit in the statement.
However, I’m quite open to the argument that the personal right to bear arms is either part of the unenumerated rights of the ninth amendment or even part of the implicit guarantee of personal autonomy the supreme court likes to call privacy, i.e., something like Griswold v. Connecticut works for handgun ownership as well.
The Second Amendment is about the right of the people to keep and bear arms as a well regulated militia — a right that the new federal government was not to infringe.
In Virginia’s convention on ratification of the Constitution, Madison was asked why Congress had been empowered to call forth the militia. As part of his answer, Madison said, “If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army.” The term “the people” as used here and in the Second Amendment, was clearly a reference to the militia.
In a purely military context such as that of the Second Amendment, the people WERE the militia. Under state militia laws existing in 1789,the militia was made up of all nonexempt able-bodied men of an age to bear arms (e.g., men between the ages of 18 and 45). In purely electoral context (e.g., Article 1, Section 2), by comparison, the people included all those qualified to vote, usually white male property owners over 21 years of age, regardess of physical condition. In the broader use of the term “the people” in the Fourth Amendment, the reference is to the people as a general public.
I’m not sure if you are disagreeing with me or agreeing with me. Succinctly my point is that the second amendment clearly protects the militia from congressional disarmament but as Sebastian points out in his reply (and you seem to recognize) the understanding at the time was that the people were the militia. What we now call the national gaurd simply does not qualify as a militia for second amendment purposes.
Hence my position that congress (and the states after the incorporation of the bill of rights into the 14th amendment) can substantially regulate the manner and type of gun ownership so long as they do so in a manner consistent with allowing a large fraction of the populace to own private arms and serve as a popular armed resistance against tyranny.
I think the confusion may have been that I used ‘the militia interpretation’ to refer to the view that the second amendment only guarantees national guard’s right to own weapons.
The founders viewed the militia and the people as one in the same, this is true, but one of the fears among some founders (namely anti-federalists) was that the Congress would its milita powers to disarm it, or would neglect it, which would allow a standing army to become a threat to liberty. The second amendment was intended to specifically allay the anti-federalists fears by recognizing that the people had the right to their own private arms. That the militia today has been wholly neglected, doesn’t negate the guarantee, in some ways, it would suggest the anti-federalist had a point, even if they might have been wrong about standing armies being an inherent threat to liberty.