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Number 2 with a bullet (part 2 of 2)

In my earlier piece about the 2nd Amendment, I looked at commenter Toad's points about gun control and how they differ from other restrictions on Constitutional freedoms. In this piece, I'm going to examine the 2nd Amendment itself and try to parse exactly what I think it means.

First, though, a personal note. Several readers have commented on occasion that I am a rather odd person, and this will illustrate just how odd I can be. There are several very important issues that I simply don't have a passionate interest in. I have a certain intellectual curiosity about them, and don't find them boring or irrelevant, but simply don't get as emotionally involved in as I do about the War on Terror or border security, for example. Gun control is one of those issues, along with abortion and capital punishment. So this is an interesting piece for me to write: I can look at it calmly and rationally and logically, without worrying if my own feelings will taint my reasoning. You may disagree with that, but I feel pretty comfortable saying it.

Let's start off by actually going to the source material -- the 2nd Amendment itself:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It's time to take out the rhetorical scalpel and microscope, and start dissecting that bugger, phrase by phrase, word by word if necessary.

"A well regulated Militia" -- there are two schools of argument here. Gun-control advocates say this refers to the National Guard, not individuals. Gun-rights advocates say that at that time, a "Militia" was "every able-bodied male." It's an arguable point, so I'll leave that alone for now.

"being necessary to the security of a free State" -- this is a truly oddball phrase that sticks out of the Bill Of Rights like a sore thumb. It's purely an exhortatory and explanatory phrase. No other Amendment bothers to explain WHY such a right is acknowledged -- they are presumed to be, to coin a phrase, "self-evident." Only in the 2nd Amendment did the Founding Fathers feel it necessary to give a rationale for a Right. I am curious why they felt the need to do so here and only here, but the only Law is the Constitution itself -- other documents can provide guidance, but they have no legal weight.

"the right of the people to keep and bear Arms, shall not be infringed."

This would be perfectly cut and dry if this was the extent of the 2nd Amendment. The form would follow the 1st Amendment, and it would be abundantly clear: the people can keep and bear arms, and the government can't do a damned thing about it until that right is abused -- just like with the 1st Amendment rights.

The argument in favor of gun control seems to revolve around that first clause, saying that the right to keep and bear arms is a "collective" and not an "individual" right. I find this a bit of a stretch, because the only other place in the Bill of Rights where a right could be considered "collective" is the 9th. In every other case, it's indisputable that the rights belong to individuals.

But I think the key phrase is in the final clause: "to keep and bear Arms." If the Founding Fathers really intended the National Guard to embody the spirit of this Amendment, they would simply say "bear arms." The arms could be held in a central, government-controlled location (such as National Guard armories) and the people could simply show up and take them as needed.

But that's not what they said. They wrote "keep and bear Arms" (emphasis added). To me, that means that they intended the weapons to be the personal property of the citizens, to be kept in and cared for in their homes, safe from "unreasonable searches and seizures" (to steal a phrase from the 4th Amendment), and borne when the citizens felt it necessary.

With that interpretation, I think that the most Constitutional policy would be to change the default position that says you cannot possess a firearm without the prior permission of local officials. Those officials would be required to grant permits unless they can present compelling evidence that doing so would pose an imminent danger to others or themselves.

Now, just like other rights, the government can and should impose certain restrictions on the exercise of the 2nd Amendment. They can restrict certain arms (such as fully automatic weapons, for example). They can set certain places and areas as "off-limits" to those bearing arms -- I think schools, bars, and government offices are certainly reasonable starting points. And they can impose harsh penalties on those who violate the laws.

Robert Heinlein put it best: "an armed society is a polite society." I think it is absolutely no coincidence that the places with the highest murder rates are those with the toughest anti-gun laws. Conversely, those areas with "liberal" gun laws tend to have much lower crime rates. I don't have the statistics at hand, but I'd be willing to wager that the per-capita murder rate of New Hampshire is considerably lower than in major cities such as Boston, New York, or Washington, DC.

I know it's a cliche' to say that "when guns are outlawed, only outlaws will have guns," but it's a cliche' because it's true. Those laws only keep those who respect the law from owning weapons. Criminals, by definition, don't respect the law, so they find their own ways of getting guns. And they are emboldened in their crimes because they know that their intended victims will most likely not be armed and equipped to fight back.

It all boils down to a simple question: do you trust the average citizen to act responsibly? Or do you think the mere presence of a gun in a home will drive them into a crazed homicidal rage? In questions like this, I always come down on presuming an individual will do the right thing and obey the laws until proven otherwise.

Because to take the other side is to believe that all Americans are latent killers and psychos and thieves, and desperately need to be protected from themselves. It's the "Nanny State" all over again, and in the Nanny State, citizens are never allowed to become grownups.

I, for one, outgrew the crib years ago. I'm ready to be an adult, to enjoy all the freedoms thereof and accept the concurrent responsibilities. How about you?


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Comments (21)

I got my CCW within a month... (Below threshold)
mesablue:

I got my CCW within a month of it being available to all in Michigan.

I trust the average citizen, but I live two blocks from Detroit (where carjacking was invented) where the average citizen and every criminal is armed.

I know a lot of Detroit and Chicago cops (I train them) and while they would prefer that there be less guns out there, they really don't mind seeing them in the hands of law abiders.

You forgot a couple of item... (Below threshold)
Jim:

You forgot a couple of items:

Militia: n citizens trained for emergency military service

That's Webster's. Now add in the above context in terms of the society when the Constitution was written. Every able bodied man was part of the Militia.

I believe that this arrives at the point that each and every able bodied man was expected to own a firearm and maintain it as part of defending the homeland.

Just my .02$

It's painful to watch a lay... (Below threshold)
Mark:

It's painful to watch a lay person take a public stab at constitutional construction, even if I agree with the bottom line. Might I suggest reading several of the many appellate and Supreme Court decisions that parse the language of the Second Amendment and recount the intent of the framers?

The guys at <a href="http:/... (Below threshold)

The guys at Arms and the Law (site not loading this morning) did an analysis of the second amendment not too long ago in which they referenced some material that strongly supported the Right to Keep and Bear Arms as meaning in no way that this referenced the National Guard. The Militia, in the sense the Founders intended, meant the citizenry. They wanted a well-armed citizenry that could throw off a national military force if so needed.

There is no such thing as a... (Below threshold)
Phinn:

There is no such thing as a "collective right." It is a meaningless phrase.

We are all sovereign individuals, each of us, and we voluntarily cede a portion of that sovereign authority to the government, to do things that we, as individuals, could do, but are better done as a group.

The mere fact of creating this entity does not create more authority. It merely aggregates authority delegated to it by its constituents.

You cannot delegate a power that you do not have in the first place. A government, acting as your agent, cannot do what you could not do.

Thus, there is no possible source of "collective rights." The mere fact of aggregating rights, powers and obligations of constituent individual members does not, by itself, expand the scope of those rights, powers or obligations.

Gun-rights advocates say th... (Below threshold)

Gun-rights advocates say that at that time, a "Militia" was "every able-bodied male." It's an arguable point, so I'll leave that alone for now.

It's NOT really that arguable.

If you check the US Code,
Title 10, you'll see that the US GOVT defines "militia" as everyone, including those specifically NOT in the National Guard.

THAT's your "well-regulated Militia."

Gun laws and violence are l... (Below threshold)
Mrs. Davis:

Gun laws and violence are less correlated than culture and violence. That is the clear message of Albion's Seed. Compare the gun laws of Vermont (among the most liberal) to those of Massachusetts (very stringent) and their murder rates 2.2 and 3.6 per 100K population versus Alabama (liberal) and North Carolina (restrictive), 11.2, 9.4 respectively.

For the meaning of the 2nd ... (Below threshold)

For the meaning of the 2nd Amendment, I suggest reading this.

- At the risk of repeating ... (Below threshold)

- At the risk of repeating myself there are a few points that beg to be made again in trems of reading and personally interpreting the Constutution/Bill of rights:

1) The framers ratified the original document in the '97 convention with the absolute intent of reconviening with the express purpose of "adjusting" those things they felt the strongest about, feeling as a group, that getting something into print on a timely basis outweighed personal mis-givings. They did in fact act on that some years later with the Bill of rights.

2) Of all the things most troubling to the framers, the four areas - State sovereignty, Freedom from "federation" tyranny, personal freedoms, and of all things "special interest group" influence, the most troubling was village/state defense.

3) If you read through the federalist papers you will see a recurring theme of concern over personal rights to defend against the ever present possibility of imposed federation tyranny from the coalition of states, the "federation". this is brought home loud and clear in the IX and X amendments, which clearly set things in concrete concerning the relationship of the citizen, the state, and the federation. It wasn't just a question of other states "ganging up", but also centered on the idea of a rougue federalist entity that could get out of control.

4) These amendments state clearly that you are a citizen of your state, and of the Union of states, the federation, after that, and most importantly the Union has no self implied sovereignty, other than what ever powers the states agree to give "it". It also says that the Union can make no law without the blessing of the states, nor impose any laws without agreement from the states as a group. Additionally, if a federal law is in conflict with a state law, the state law would prevail, and any Federal laws not specifically agreed to by the states would be null and void. The framers were deeply concerned about the possibility of this "federation" they were forming taking on a life of its own, and getting out of hand, something that many might argue has unfortunately happened at times in our history. Most people still to this day, do not realize the true structure of this relationship.

5) With these areas as a backdrop, it is obvious that the framers never wanted to lose the right to defend themselves if the need arose, indeed felt so strongly about this potential problem, the "right to bear arms" was spelled out specifically so that future legislators could not miss its meaning.

- I think a more apropos question might be - "has the need for this sort of stipulation long since passed", which opens up another area of debate, but one that is probably more meaningful, and avoids the gun ownership arguments that are repleat with personal "agenda", and are really tangential to what the framers were trying to protect.

Here is a link to the rever... (Below threshold)
Rod Stanton:

Here is a link to the reverse impact gun control laws have:
http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/071105dnedilott.93510847.html

But the real issue should be what did Jefferson intend when he wrote the 2nd Ammendment. Jefferson (like most of the guys who wrote the Dec of Independence) was a follower of two Brit thinkers: A. Smith and John Lock. Locke was a strong advocate for *WELL /HEAVILY* armed citizens. He believed that the only way for citizens to keep their freedom was to be able to crush an opressive government. Jefferson refered to Locke's "Two Treatises of Government" several times when pushing the 2nd ammendment. Tom said we had to have the same weapons the govt had in order to keep the govt in line. Tom would say the 2nd Ammendment grants us the right to own machine guns and LAWs.

It's painful to watch a ... (Below threshold)
Ed:

It's painful to watch a lay person take a public stab at constitutional construction, even if I agree with the bottom line. Might I suggest reading several of the many appellate and Supreme Court decisions that parse the language of the Second Amendment and recount the intent of the framers?

Posted by: Mark at July 19, 2005 11:28 AM

Uh huh. I love it when some arrogant prick lawyer-type thinks that only with years of training can any "lay" person hope to understand the complexities and nuance of the U.S. Constitution. Just for everyone's edification especially Mark's, the U.S. Constitution was written in the normal prose of the day, no special "legalese" was used. Why? Obviously so every colonist that spoke English could understand it. Our Constitution is only 3 pages, compared to the EU Constitution that was over 1000 pages. Perhaps Mark should consider moving to the EU where lawyers are going to be needed to decipher that mess? So Mark, the interpretation of the 2nd Amendment is obviously clear. Its scumbag lawyers and those that think like lawyers that fuck up the 2nd Amendment for the rest of us. Have you ever considered why the 2nd Amendment protects firearm ownership, and it was not the 5th or 8th Amendment?? The framers felt that firearm ownership was so important, it was listed after the freedom of speech and press amendment. Guess what??? I didn't need no fuckin lawyer to tell me that.

During the American Revolut... (Below threshold)
Machias Privateer:

During the American Revolution (1779), my fourth great grandfather asked for, and received from the Massachusetts General Council, a commission for a 10 gun privateer. So private citizens owned cannons and swivels! His commission required posting a cash bond, and then entitled him to capture and take prizes to an admiralty court for condemnation. Service in the militia was voluntary and often for fairly short terms (e.g. weeks, not months).

Nice one, Ed. Very well-re... (Below threshold)
Mark:

Nice one, Ed. Very well-reasoned and articulate analysis there (NOT!). It is very wrong in almost every respect.

In fact, you are a prime example of why we do need legal scholars and courts to apply the rules of construction (yes, there are rules) and delve into the Federalist Papers, historical context, linguistic analysis and other evidence of legislative intent (and yes, even "strict constructionists" do this). The fact is, the Second Amendment is relatively ambiguous given modern English usage, and is one of the more confusing sections of the Constitution. Hence the long-standing controversy.

I agree that the Second Amendment guarantees the citizenry qualified rights to own and bear arms. I think we're on the same side here, but most likely for different reasons. I won't comment on the slight problems I see with Jay's analysis, but I will be candid about yours: It's one of the most pin-headed and asinine things I've ever read.

Ed, I suggest you stick to smashing beer cans on your head at the local recycling center, and leave the task of constitutional analysis to someone with an education.

To clarify my earlier comme... (Below threshold)
Mark:

To clarify my earlier comment to Jay: What I meant was that there is a huge body of writtings by the courts that provide great background and an analytical spring-board for launching his own opinions. Watching him try to re-invent portions of that wheel here was a little awkward, as occaisional missteps were made. That awkwardness could have been avoided by reading court opinions rather than the partisan talking points disseminated by both sides of the gun control issue. I did not mean for my comments to be a slam against Jay.

I now it's sacrilege to law... (Below threshold)
bullwinkle:

I now it's sacrilege to lawyers to even hint at this but the Constitution and the Bill of Rights were both written in in a way that they are easily interperted by anyone but a lawyer. The act of reinterperting either only serves to twist the original intent to the interperter's opinion. The only people who ever thought the original intent wasn't clear are those intent on changing it to suit their beliefs. There was damn little argument about what it meant at the time but there was quite a bit of argument about the actual wording to make sure it was clearly written.

Back in 1992 Ross Perot was... (Below threshold)

Back in 1992 Ross Perot was fond of saying that the people are "the owners of the country." Whatever else he may have said, he actually has that one pretty well right -- especially if you think of "the country" as being those public elements that are the province of government.

The law, for example. It belongs to the lay citizenry, not to any profession.

The National Guard was crea... (Below threshold)
Jimbo:

The National Guard was created in 1917 so it is hard to see how the framers could have intended the 2nd Amendment to apply to that organization.

Who is "the people" refered to in the 2nd A.?
The same "people" refered to in the 1st A. and all the rest...

In 1783 "well regulated" meant the ability to shoot accurately. The term is still used when a gunsmith tunes a double barrel rifle; its called regulating the gun.

So the meaning is clear, the framers knew the individual citizens who comprise the militia need to be experts with firearms; they need the right keep their own guns (at home) and carry them (bear) them as they see fit.

"Now, just like other ri... (Below threshold)
Idahoser:

"Now, just like other rights, the government can and should impose certain restrictions on the exercise of the 2nd Amendment. They can restrict certain arms (such as fully automatic weapons, for example)."

So you think it's reasonable to restrict rights, eh?

Thomas Jefferson would have said "to keep and bear semi-automatic arms" had there been full auto at the time?

The purpose of the Second Amendment is not fuzzy, it is to ensure that the people can always put down any attempt by a runaway federal government to enforce tyranny.

This means that any weapon, ANY weapon, that a typical soldier could carry, SHALL be within the citizen's right to keep and bear. If the US Soldier carries a tactical nuke, then by God it is within the citizen's right to have same.

Don't like it? STOP PISSING OFF CITIZENS.

Actually, 'well regulated m... (Below threshold)

Actually, 'well regulated militia' isn't a very arguable point. The notion that the second Amendment, dating to 1791 (ratified then), refers to the National Guard, (formed in 1903) is laughably illogical. Keep in mind, though, that the gun banners are NEVER about a rational argument - only an emotional argument. Ed and bullwinkle are right, the only problem with the 2nd (and the rest of the constitution) is that it is now being 'interpreted' by lawyers with an agenda instead of simply being read. And for Mark, who thinks only lawyers are qualified to read the constitution, a bunch of them have, and the conclusion is the obvious one: The 2nd acknowledges an individual right. See my URL.

Let me ask a question, plea... (Below threshold)
MarkoG:

Let me ask a question, please:

Why in the hell do we (us 'redneck guns nuts') waste our time debating court cases and twisted interpretations of the BOR?

Let's forget the 'National Guard', the 'Militia', 'collective versus individual rights' arguments, the style/capabilities of modern weapons versus muskets, and so forth.

Let's stop arguing about 'machine guns', 'assault weapons', 'cop killer bullets', and the latest 'terrorist weapon of choice'.

The truth is plain and simple: every person has a God-given right to protect themselves, their family, and their property with whatever weapons are available.

No compromise, negotiation, or 'reasonable controls' are possible; self-defense is not subject to the whims of government officials nor does it require their approval.

Any gun-grabber who doesn't like this sentiment can kiss my furry ass; any gun-phobic asshole who wants to confiscate my weapons is advised to show up at my door in a tank.

NO COMPROMISE!!

Actually, I don't think it ... (Below threshold)
Marty:

Actually, I don't think it is vague at all.
It doesn't grat "qualified" rights to firearm ownership at all.
Shall not be infringed, where do see that there should be qualifications in that statement?
We are entitled to own the exact same weapons that the military possesses.
That is so that in the case of Tyranny, we can throw it off and reaffirm the Constitutional Government.
Haow hard is that to understand?




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