I don't have anything new to say about the Supreme Court's Second Amendment decision, so here's what I wrote in 2004:
Original Intent of the Second Amendment: I haven't really been into guns since I desperately wanted a BB gun for my 9th birthday (see "Christmas Story" for details), but my son and I did some research recently into what the authors and ratifiers of the Bill of Rights intended to do by passing the Second Amendment: "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."
This wording is rather unusual -- besides the superfluity of commas -- in the context of the Bill of Rights in that it contains what appears to be a "whereas" clause, which most of the other first 10 amendments don't. The First for example, doesn't say, "A war of religion, being a bad thing, Congress shall make no law respecting an establishment of religion."
This anomaly has led many contemporary commentators to assume that the 2nd Amendment was meant only to apply to state militias and not to individual gun ownership. Here, for example, is Dahlia Lithwick in Slate confidently explaining that "Eminent legal scholars, including Sanford Levinson and historians such as Emory's Michael Bellesiles, have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country."
Staggering, indeed. As the eminent Professor Bellesiles showed in his prizewinning book Arming America: My Fantasy of How Frontier Life Should Have Been, when an American in 1789 felt a hankering for deer meat, rather than resort to using a gun, he normally ran a deer down on foot and gnawed the beast to death with his teeth.
What my son and I found out about the original intent was the exact opposite. The research was a little frustrating to do because there was almost no debate among state legislators at the time about an individual right to gun ownership -- because that simply wasn't controversial. Of course Americans had the right to own guns: the woods were full of bars, Injuns, and bad 'uns. Nobody argued about it then because there was nobody at the time to argue with.
What was controversial back then were state militias -- trained bodies of fighters who could potentially resist the federal government. Legalizing militias -- i.e., alternative armies to the U.S. Army -- was obviously a much more radical step than legalizing individual ownership of firearms. Legitimizing militias was a concession that Federalists like Madison made to win the approval of those skeptical of the centralizing force of the Constitution.
When the Union Army won the Civil War, the idea of alternative armies started to look outdated, thus leading to the current misinterpretations of what the authors and ratifiers of the Second Amendment meant. Gun control advocates should feel free to argue than in an era of rocket-propelled-grenades and radio-dispatched police cars, the whole Second Amendment is obsolete and dangerous, but please don't make up stories about what it was supposed to mean.
The other big change is that the Bill of Rights didn't apply to the states until the 14th Amendment of 1868. For example, Connecticut had an establishment of religion until 1818. So, the ratifiers weren't establishing an absolute right of gun ownership, they were just preventing the federal government from infringing it.
My published articles are archived at iSteve.com -- Steve Sailer
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38 comments:
In re the apparently superfluous comma, there is an old convention whereby a comma was placed after compound subjects as a delimiter. I first became conscious of this when reading Dickens, who always uses it. There's an item about it in Fowler, 2nd edition.
It seems to me that in considering the contemporary right of the individual and the meaning of the amendment that with D.C. having one of the highests crime rates in the country, the least the 'state' can do is allow the common citizen to arm himself for protection.
The argument that more crimes will be committed is useless to me. Although true that some domestic crime, tragic accidents, and perhaps some crimes committed out of desperation will increase, I feel that the number of home invasions and muggings may decrease if the playing field is a bit more level. Gun control only works with law-abiding citizens. The bad guys don't worry about legally obtaining their weapons and were more confident that those who they were bullying couldn't fight back.
susan
The 14th Amendment didn't "incorporate" anything from the Bill of Rights until the 1920s.
The Language Log some posts on those goofy commas you can find from here.
Also, Sanford Levinson seems to have changed his mind into supporting an individual-rights view of the 2nd amendment, at least according to the law-profs at Volokh.
Now what happens in DC when, depending on what the requirements are, in terms of a criminal or misdemeanor record, perhaps 90-99% of white males and females are eligible to have a handgun and perhaps only 30-50% of black males are?
I think we have some 'disparate impact' arguments coming up.
But, yes, I agree with your view. States, but not the Federal government, could do what they wanted to with guns. And the DC government functions as a state and local government, even though it is formally an agency of the Federal government. Sort of like the territorial legislatures that governed most of the present US temporarily in the 19th Century before these territories became states.
The only real argument for applying the Second Amendment against the states is that liberals have spent 80 years incorporating the provisions of the Bill of Rights they like against the states, but not the provisions they do not like, such as the Second Amendment and the full force of the Fifth Amendment's prohibition of double jeopardy. (because we wanted to use the Federal government to prosecute the murder of civil rights workers that Southern state juries would not convict in the 1960s.)
So liberalism has tied its shoelaces together again, and we are all about to learn the consequences.
This analysis is absolutely, 100% dead on, as usual.
I think that the actual date for when the 14th Amendment incorporated selective parts of the Bill of Right against the states is 1968 (yes, nineteen sixty eight) not 1868. Felix Frankfurter argued into the 1950s that the 14th Amendment had its own meaning and didn’t depend on the Bill of Rights to operate.
The Supreme Court case in 1968 which made the selective incorporation of parts of the Bill of Rights via the 14th Amendment official is Duncan vs. Louisiana. The process of incorporating parts of the Bill of Rights had been going on but there was a dispute about it. Hugo Black wanted “total incorporation” but instead got “selective incorporation” which until now meant every amendment of the Bill of Rights applied to the states except the 2nd amendment.
So, the ratifiers weren't establishing an absolute right of gun ownership, they were just preventing the federal government from infringing it.
Obviously the whole liberal/establishment reading of the Constitution is ass backwards (and that's no coincidence, obviously). The Constitution does not enumerate individual or State rights. It enumerates the powers of the Federal government.
E.g., the Bill of Rights is just a quick 'n' dirty laundry list of **** the Federal government has no power to mess with, should it take leave of its senses and totally forget its place. The whole thing is redundant, presciently so.
Gun control only works with law-abiding citizens. The bad guys don't worry about legally obtaining their weapons and were more confident that those who they were bullying couldn't fight back.
It should be pointed out explicitly that the "only law-abiders obey gun laws" only makes sense in the context of a gun as a tool of personal empowerment. Obviously only law-abiders obey gun laws; only law-abiders obey any given law. The difference is, guns are a tool that empower people to protect themselves, as well as harm others. The only thing gun laws do is restrict the power of law-abiders to protect themselves, thus taking all the good out of guns and none of the bad.
I disagree with your last point.
The Second Amendment says "the right of the people", clearly a right of individuals; the First Amendment says "Congress shall make no law", even more clearly, a restriction on the Federal government only.
"A good tomato sauce, being necessary to the security of a good pizza, the right of the people to keep and bear tomatoes, shall not be infringed"
m
Nearly perfect account of the Second Amendment, except for the implicit assumption that the intent of the Fourteenth Amendment was to incorporate the Bill of Rights.
That view of the Fourteenth Amendment didn't become mainstream until the 1960s.
The founding fathers were concerned that the government they were founding would eventually become tyrannical and repress the political rights of the people through force of arms, or that it would use the courts to do the same thing through criminal prosecutions--hence all the rights afforded defendants in criminal proceedings.
The founding fathers did not anticipate the crack cocaine epidemic. Being aristocrats, they assumed that the courts would always act vigorously to suppress crime and protect property rights. The constitution is an idealistic document designed to protect our political rights--not to keep a certain number of criminals in circulation. It needs to be interpreted in the light of common sense.
I read that the mayor of San Fransico, Gavin Newsom, said, "You just wish the Supreme Court could spend a week in public housing and then come out with this decision."
Well, I doubt the founding fathers intended for blacks to own firearms, but I imagine that assertion would be met with outrage by the mayor, even though his own comments are cryptically racist.
Steve Sailer: What my son and I found out about the original intent was the exact opposite... What was controversial back then were state militias -- trained bodies of fighters who could potentially resist the federal government. Legalizing militias -- i.e., alternative armies to the U.S. Army -- was obviously a much more radical step than legalizing individual ownership of firearms. Legitimizing militias was a concession that Federalists like Madison made to win the approval of those skeptical of the centralizing force of the Constitution.
This is also true of the first amendment's "establishment" of religion: "Congress shall make no law respecting an establishment of religion" meant that Congress was explicitly forbidden to interfere in matters involving the official, established churches of the states.
So, for instance, the state of Massachusetts was free to pass laws mandating attendance at, and levying taxes in support of, an official state religion of "Puritan Congregationalism", whereas the state of Virginia was free to do the same as regarded an official state religion of "Anglican Catholicism", and the federal Congress was explicitly forbidden to interfere in the states' decisions to maintain & subsidize these theocratic infrastructures.
robert61: In re the apparently superfluous comma
The Consitution Society, in a footnote, points out that there are contemporaneous versions of the text which do not contain the commas.
But the bottom line is the conclusion of the sentence - how the conclusion is arrived at is utterly unimportant: 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.
The sentence could just as well have read thusly, and the sentence's conclusion would have been equally inviolable: The right of Martians to land their flying saucers on the surface of Earth's moon and to harvest its bountiful excesses of cheddar cheese, being necessary to the security of a free Solar System, the right of the people to keep and bear Arms, shall not be infringed.
Of course, the mere fact that we are talking about this only serves to prove that Hamilton was the most prescient political thinker of the modern era when he pointed out that any ostensibly minimal list of the rights of man would quickly devolve & degenerate into a maximal possible list of the rights of man.
Beyond that, a "Constitution*" isn't worth the paper it's printed on if the people who swear to uphold it turn right around and violate their oaths as soon as the opportunity presents itself.
And we haven't even begun to address the fact that constitutional politics are now decided by the most anti-Constitutional device of them all - namely, the abomination of Marbury -vs- Madison.
*The people of New England, in the late 17th century, and into the 18th century, used the word "Constitution" in a very different sense than we use it in our era: To them, the word had almost a sacred meaning to it - something along the lines of "the very nature which constitutes us [as our bequeathment from That which created our nature - or at least Which created the possibility for the nature that we have chosen for ourselves]".
So to them, when they said, "our Constitution", they meant something akin to "our nature", as opposed to, say, the natures of the Papists, the Mohammedians, or the savages they encountered in the New World.
Well Steve if you can't find an angle from which to comment on the 2nd Amendment ruling you might consider: race and affirmative action.
Washington D.C. is a town haunted by violence - black violence. Rock Creek Park divides the white and black sections the way the Wall used to divide Berlin.
As you very well know blacks have a murder rate almost an order of magnitude higher than that of whites (or asians). So the face of the home invader that haunts the capitol is a black face.
Yet somehow the media didn't run headlines that said, "Supreme Court upholds the rights of white home owners to defend themselves against murderous blacks".
The law and order solution for violence by blacks against whites - the police - has been compromised by a couple decades of affirmative action intiatives.
See:
http://blog.vdare.com/archives/2007/12/23/criminal-police-in-philadelphia/
and
http://web.archive.org/web/20050513194807/http://www.taemag.com/issues/articleid.18526/article_detail.asp
The last refuge of the besieged white home owner has been his gun. This week the Supreme Court has decided that whites have some rights too.
After a couple decades of PC indoctrination its very tempting to not use the terms "white" or "black" so as to politely obscure the issues. But this year we have a black man running for President on a platform of change. Very well, let's change. Let's be candid about the racial back story.
While the 1st says Congress shall make no law abridging the freedom of speach, the 2nd and 4th simply state rights that shall not be infringed. The Constitution is the supreme law of the land. So I would read it that the rights in the 2nd and 4th could not be abridged by Congress, the Executive, any State, any treaty, etc.
Madison was not a Federalist. In general, you can think of it this way:
Federalists:
- Washington
- Hamilton
- Adams
Republicans (i.e. Democratic-Republicans):
- Jefferson
- Madison
Madison started out a Federalist, but jumped ship and joined the Democratic-Republicans later. Adams was the last Federalist president because the party made itself so unpopular that it disappeared during the "era of good feelings".
I agree with the Anoymous who pointed out that the 2d explicitly states that right of the people to keep and bear arms, etc. It sounds to me like it intends that right not to be infringed by any level of gvt at all, in contrast to other amendments, which seem to limit only Congress, and not the States -- established churches being the most obvious example.
Ian: The meaning of "Federalist" changed between 1787 and the mid-1790s. It originally meant a supporter of the Constitution, which Madison certainly was. When it came to be applied to one of the two original parties, it described a somewhat different group of people that did not include Madison.
Small point; (this was always on the bar exam) Some of provisions of the Bill of Rights still don't aapply to the states; first that pops in my head is the grand jury bit in the 5th amendment (Pennsylvania, for example, doesn't usually use them).
Wow, I've contributed.
"I agree with the Anoymous who pointed out that the 2d explicitly states that right of the people to keep and bear arms, etc. It sounds to me like it intends that right not to be infringed by any level of gvt at all, in contrast to other amendments"
Thank you. As a graduate of Boalt Hall, unfortunately, I realize that there is little support for my jurisprudence.
It would be interesting to look into. Are the Bill of Rights worded differently simply to add interest to such a short document? One time it is "Congress shall make no law" the next time it is like an order of God in the passive voice. "shall not be infringed (by any existing or any dreamed up institution in the future)."
Anyway, IMHO the academic institutions are political and neither SCOTUS decision nor Internet are going to stop our rush to collective decision making. Please read "The Road to Serfdom" to understand that people will be unsatisfied by whatever political decision is made (there is no calculus of competing interests). That is why Congress enjoys an approval rating below the MSM, Congress could not do a better job if it were made of the best people in the world. Their job, to replace the market, is impossible and doomed to failure. No one will be happy with Congress as long as it attempts to do what is is doing today.
Steve, you do know what became of Prof. Bellesiles?
Release date: Oct. 25, 2002
Contact: Jan Gleason, Assistant Vice President, Public Affairs,
at 404-727-0639 or jgleason@emory.edu
Oct. 25: Michael Bellesiles Resigns from Emory Faculty
October 25, 2002
Robert A. Paul, Interim Dean of Emory College
I have accepted the resignation of Michael Bellesiles from his position as Professor of History at Emory University, effective December 31, 2002.
Although we would not normally release any of the materials connected with a case involving the investigation of faculty misconduct in research, in light of the intense scholarly interest in the matter I have decided, with the assent of Professor Bellesiles as well as of the members of the Investigative Committee, to make public the report of the Investigative Committee appointed by me to evaluate the allegations made against Professor Bellesiles (none of the supporting documents, however, are being made public). The text of the report is now available online at www.emory.edu/central/NEWS/.
Emory considers the report authoritative.
In conducting this investigation, Emory has scrupulously observed the procedures laid out in our published policy statement regarding matters of alleged research misconduct. Throughout the investigation process our efforts have been guided by the objectives of maintaining the highest standards of scholarly integrity, while also striving to ensure the confidentiality of the proceedings and to protect the rights of a member of Emory's faculty.
The Investigative Committee was chaired by Stanley N. Katz, Professor of Public and International Affairs, Princeton University, and included Hanna H. Gray, Judson Distinguished Professor of History Emerita and President Emerita, University of Chicago, and Laurel Thatcher Ulrich, James Duncan Phillips Professor of History, Harvard University. I hereby express my appreciation to these distinguished scholars for contributing their effort and expertise to the resolution of this matter of such great importance not only to Emory but to the wider scholarly community. Committee members have stated that they will not discuss or respond to questions about the investigation or the report.
Emory also wishes to express its thanks and appreciation to Professor Bellesiles for his many years of service and his many valuable contributions to the University.
Emory now considers the investigation of allegations of research misconduct against Professor Bellesiles in connection with his book Arming America: The Origins of a National Gun Culture to be concluded and resolved.
http://www.news.emory.edu/Releases/bellesiles1035563546.html
But, DC isn't a state. I'm not clear what exactly it is in this context, but isn't it a direct federal entity? If so, doesn't the analysis of Constitutional intent then demand this decision? And doesn't that make this decision irrelevant to a State ban?
--z
And we haven't even begun to address the fact that constitutional politics are now decided by the most anti-Constitutional device of them all - namely, the abomination of Marbury -vs- Madison.
One thing I learned from the Court's opinion was that Marbury was like Miller -- essentially a default judgment. Only one side briefed the issue and appeared forargument.
Gun rights are vital for individuals and militias (of the state and even civilian militias). Guns allow individuals to defend themselves, especially as the criminals don't obey gun laws anyways.
As stated in the Second Ammendment, militias are permitted. States and individual citizens have a right to militias. We probably would have lost our war for Independence, if we didn't have any independent militias. Again, American militias could very well fend off another invasion. Militias are so important, as they provide the government with mulitple aspects. The official Federal and State armies (/national guards) provide convential armies. Militias could provide guerilla armies. Hereby, we have the overall strength and ability to hide (/ambush), with both forms.
For any militia skeptics, look at Iraq. If there were no militias therein, we would have made a puppet goverenment and left, by now.
The first amendment specifies Congress as the restricted party ("Congress shall make no law..."). The 2nd amendment is not limited to Congress and applies to all jurisdictions. The bearing of arms is inherent to the natural right of self defense which precedes the Constitution and cannot be legally restricted without a compelling reason(felons, mentally ill, minors., etc).
As stated in the Second Amendment, militias are permitted.
I know this seems obvious to one crowd, and semantics to another, but no, the Bill of Rights doesn't "permit" militias. The Constitution doesn't enumerate what is permitted to citizens and States. It enumerates what is permitted to the Federal government. EVERYTHING ELSE is not "permitted," but a right of States/citizenry, to be hashed out between the two.
The Constitution is a very narrow document, and spells out Federal powers, not a narrow document that spells out the rights of citizens. The currently popular thinking (i.e., the reverse, basically) is a dangerous inversion.
In Chicago,mayor Daley has gone,uhm,ballistic.
Seems to me that the Constitution gives a lot more power to regulate militias/civilian gunowners to the Federal government than it does to the states. "The right of the people to keep and bar arms shall not be infringed" contains no trace of an implication that it doesn't apply to states - it binds anyone who could possibly infringe the right, states, counties, condo associations, etc. (Maybe not landlords.)
On the other hand, there are is a specific provision of the constitution that calls upon the Federal government to organize, arm, and discipline the militia: Article I Section 8. (Even if you don't believe anything I say, please read all of Article I Section 8 if you're familiar with it - it's easily as important as any of the Amendments.) This leaves only the functions of appointing officers solely to the states (training is a shared Federal/state function). So there is some interpretation of where the line is drawn between rights infringement (forbidden), organization & discipline (allowed), and good regulation (mandatory).
Why people imagine states have rights to organize/arm/discipline individual gun-owners is completely beyond me. In the relevant Federalist Paper, Madison (Federalist or not, take your pick) makes this pretty clear. Militias are all free armed citizens not employed by the state; disarm them and they're not militia any more. Their officers are appointed by the states (solely). All the rules they operate under are Federal. This doesn't make the President their commander-in-chief; it just means that in their capacity as commanders-in-chief, state governors are executing Federal laws rather than state ones. Obviously this gives lots of power to the adored state governments; with no indication that the militias could be Federalized, no state could be stripped of its defenses by an overbearing President, and there would be reduced incentive to spend tax money on a large standing Army that could be shipped overseas.
(The National Guard is different, because those folks draw taxpayer salaries; it is a hybrid that I do not believe was foreseen by the framers.)
Anyway, this is my reading of the Constitution and Madison's supplementary work. I really see no other way to read it but I'm open to suggestions.
"Gun control advocates should feel free to argue than in an era of rocket-propelled-grenades and radio-dispatched police cars, the whole Second Amendment is obsolete and dangerous"
I read an account of the Rodney King riots, where some people hiding were so releaved when a bevy of police cars arrived. After a few minutes the police left, they left the citizens to the lawless and lethel streets. The police did not do anything wrong - they could not be liable - it was within their right to leave. They have no legal obligation to protect you.
Again I saw an interview of some New Orleans citizens. When they finally spotted a police car and tried to flag it down the police would not stop, not even for a word. You really know that you are on your own when you are standing in front of a police car begging for assistance and they lock the doors and drive away. I'll bet your whole perspective on the universe changes in those few moments.
Radio dispach my a**. Sometimes people die of a heart attack without assistance because police refuse to enter a house with a barking dog.
You can debate it, but I believe that mostly, if things get bad or go not as planned, you might be on your own.
I actually don't think this ruling will allow any actual residents of DC to buy guns. There are no gun stores in DC, at least not that sell to civilians, and people can't buy guns out of state. I also doubt there are any gun shows. People moving to DC who already own guns may be be allowed to bring them in though; I'm not sure about that.
The ripple effects of the ruling will be huge. I hope state as well as local laws start getting squashed.
As to the Incorporation Doctrine, it still seems inappropriate. The 1st and 2nd Amendments both leave clues as to whether they bind the states or not - the 1st does not and the 2nd does. If this is not the case, why were they written in such different language?
"Gun control advocates should feel free to argue than in an era of rocket-propelled-grenades and radio-dispatched police cars, the whole Second Amendment is obsolete and dangerous"
In the wake of events like those of Sept. 11th, I can think of nothing more obsolete or dangerous than relying on the government to protect you.
When people in the south tower of the WTC tried to leave the building after the north tower was hit, the "authorities" told them that everything was under control and they should go back to work. My inclination would be to believe that if the building next to mine were struck by a jumbo jet going 500 mph, that it is safe to say that nothing is "under control".
No police cars were dispatched to rescue the victims of the Carr brothers in Wichita, or to rescue Channon Christian and Christopher Newsom in Knoxville. The police can not dispatch a patrol car to the scene of a crime they are unaware of. In those cases, you are entirely on your own.
And ultimately, one of the purposes of the second amendment was to ensure that people would be able to fight back against the government itself.
I'm glad that the DC gun law has been struck down, but why did the court have to do it? We have had a Republican Congress and president for the last 7 years and they could not pass a law requiring that DC ( A Federal entity) allow private firearms? This ruling just legitimizes the court's massive power and encourages people to mindlessly vote republican even when the Reps screw them over, because 'we need to keep the court in balance.'
The republican's need to use their power under the constitution to limit the Federal court system jurisdiction in matters that they believe it is out of control on. This is perfectly legal and is included as one of the enumerated powers of the Congress in the constitution.
Ronduck, I think the answer is just that the DC Republicans aren't really a party of limited government any more. They are a party that wants to have its big-government cake and eat it too, by appointing judges who will uphold the Patriot Act but strike down gun laws.
The Republican rank-and-file needs to make a choice between short-term "results" (sticking with the Repubs and trying to stave off the worst excesses from the big-gov crowd) and moving to a party that actually represents them. The latter course gets you no respect from the "popularity makes right" crowd, of course.
Its time we actually took the 14th amendment seriously. They Supreme Court chickened out in not incorporating their decision into the 14th amendment. They will wait for the suit against Chicago to go through the process before deciding on that issue. I have this funny feeling it was done to appease Justice Anthony Kennedy who is being a pain in the ass. Of course this ruling incorporates into the 14th amendment. The fact the the rulings that incorporated the 1st, 4th, 5th, 6th, 7th and 8th amendment also apply to Washington DC, it works both ways. This "DC is not a state" argument won't wash. It operates like one. They have a mayor, elected city counsel,run schools, prisons, garbage collection, ect..and more important passes its own laws.
Chicago and that mentally ill nutcase Daley will lose.
ben franklin:
I think you missed Gitlow v. New York, 268 U.S. 652 (1925), which held that the 14th amendment incorporated the 1st amendment's guarantee of freedom of speech (though it didn't use the word "incorporate");.
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