The meaning of the right to bear arms

While I do not believe, as one of my friends insists, that the Supreme Court has become solely a political body, interpreting the constitution so as to fit the requirements of the majority political philosophy, as opposed to law, I do consent that it has to some extent become so, particularly when controversial cases come up.

I am sometimes amused when those on the left (usually the minority) rail against certain Supreme Court decisions by the court as being right wing politics, when some of those decisions were made by left wing majorities (the Kelo case, allowing states to take property from some private individuals to give to another private group, comes to mind) or by a mixed majority. However, sometimes they are absolutely right.

Last year, with the addition of Roberts and Alito (replacing O’Connor), the court undoubtedly swung right, particularly in criminal matters, but not as far as the critics claimed (feel free to check out my 7/4/07 post, How far right did the new Supreme Court swing?). After all, both new conservative justices replaced other conservatives, although O’Connor was a known occasional swing vote, particularly on abortion and affirmative action. However, I do not expect a change from the fact that in controversial cases, the court will line up like ideological ducks, with Anthony Kennedy being the Weeble in the middle, wobbling most often to the right, but occasionally to the left. He is the escape valve. When the right heats up too much (in his opinion, of course) he lets off the steam to the anger of conservatives and applause of liberals. Usually he is a steadfast conservative.

The left will be disappointed in Kennedy in the most politically controversial case this year, District of Columbia v. Heller, which was argued this week in the Supreme Court of the United States. It is the first time the court has touched upon the question of the second amendment (often just called the right to bear arms) since before WWII. In that case, U.S. v. Miller, the court determined that sawed off shotguns were not the type of weapon that would have been used for a military purpose (they were wrong – our troops used them in WWII), so it could be regulated; however it did not state what the second Amendment meant.

I’ll state right at the beginning, I do not have a rigidly strong opinion as to my conclusion (hey, it took me ten years to make up my mind about the death penalty), although I think I have a good grip on the arguments. This is actually consistent with my view of the constitution, which is different from that I’ve heard from really any commentators. I believe:

- From the beginning the constitution only worked in a larger sense, and never really worked well in many particulars, including the bill of rights.

- The amendment process either worked too well or too poorly, depending on your perspective, making changes rare, and, obviously, only when there was large agreement.

- Some parts of the constitution are simply not decipherable by us today, including, as one example, the second amendment. Other parts of the constitution are simply ignored

- Theories or phrases such as strict construction or original intent (favored by the
right) and fundamental rights or living constitution (favored by the left) are meaningless in terms of being the only valid way to interpret the constitution. They are adhered to by their proponents when it suits their purposes and disregarded when they do not (Bush v. Gore being a great example of both side cleaving to arguments which they traditionally opposed).

- Even if strict construction or original meaning were good strategies in the first place, the use of precedent a/k/a stare decisis, makes them unusable. Once the train goes off the track, you can’t just have it run back on.

The primary point of this post is not to tell you what the answer to the second amendment problem is for certain, but how difficult it is to come to a firm conclusion about it. Like most things that are contested on partisan grounds in this world, the certainty those who consider themselves enlightened should not to taken too seriously. I do know which way I would vote, though, and I will advocate a decision by the court (and would probably be outvoted).

The Heller case deals with laws prohibiting handgun ownership and use in the federal capital, among other regulations. Congress has, pursuant to the constitution, direct control over Washington, D.C. Therefore, this case will be determined slightly differently than one involving a state’s right to ban or control handgun usage, because there is no discussion as to whether any particular one of the bill of rights applies to the states (if you don't understand what this means, don't worry, keep reading). We will look at the sexiest issue, the one that everyone would really like to have determined, whether the second amendment prevents the state from restricting an individual’s right to own and use a handgun, and ignore most of the others.

Here’s the amendment itself:

“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.”

If I can summarize the arguments of both sides -- from the gun lobby point of view the amendment plainly protects a right for individuals to bear arms, and, conversely, from the anti-gun lobby point of view it plainly protects the right of states to arm their militias and nothing more:

In looking directly at the language of the amendment, which is always the best place to start, we come up with problems which are difficult to resolve:

- Why, unlike the other first 8 amendments in the bill of rights, does the 2nd amendment state a purpose, and how does it affect its meaning?

- Does the “people” mean individuals or the body of persons in the state as a whole?

- What does “right to bear arms” mean?

- Why would the founders place a state right among all the other individual rights in the bill of rights?

None of the answers are self-evident.

If we ask what Madison (who drafted the proposed bill of rights) or Hamilton, the other most important interpreter by convention, thought as to the meaning of the amendment, as is often done in these constitutional cases, we come up empty, at least if we are looking for a direct answer. There are comments in the Federalist Papers, which they wrote (with a little help from almost forgotten founder, John Jay)but I do not see them as particularly persuasive.

John Adams stated in his A Defence of the Constitutions of the Governments of the United States of America, he takes the position that guns should not be available to everyone, for it would put liberty of all at risk. So much for trusting “the people”. It is, of course, the opposite of the position taken by the gun lobby. He wrote his treatise, however, before the federal bill of rights existed. He was not part of the constitutional debate itself, however influential he might have been.

Possibly, the founders knew what the second amendment meant and didn’t think it would be necessary to state it. Or, just as possible, there was no necessity of it being brought up or challenged at that time and differences of opinion as to meaning, as happened with other areas of the constitution, did not come up for a long time.

If we look at history, we can find many hints, but hardly definitive ones.

Interpreting the constitution often involves looking back at British law which continued to bear sway in America during and after the revolution. A 12th century statute known as the Assize of Arms has been summoned from its deep slumber by the pro-gun forces. This statute generally required all men to bear arms so that they could aid in the defense of the country. Indeed, the common law crime of mayhem, that is maiming or disabling someone, was a common law crime because it made it impossible for the victim to do his duty to the country if needed.

This statute became part of English Common Law, which was certainly the basis of American law even after the Revolution, except where overruled by the constitution. The argument goes that since all citizens (white males being the only ones with rights) were considered to be in the militia and have a duty to bear arms, individuals certainly had the right to bear arms.

The English Bill of Rights (1689) gave a right to bear arms to some Englishmen (Protestants), which, given modern equal right laws, would be held to now apply to all people. The pro-gun briefs before the court rely heavily on the fact that in England individuals had a right to have a gun for self defense purposes.

Supporters of the proposition that there is an individual right to bear arms found in the second amendment rely heavily on this logic.

I have several problems with this approach. For one thing, England is not America, and the constitution was a reaction to English oppression. If we simply follow English common law, there would be no point to a constitution. Moreover, too much can be made of ancient law comparisons. For instance, my own review of the the Assize of Arms argument tells me that, in short –

1. The Assize of Arms was, by the time of our constitution, an antiquated and unusable document.

2. The weapon concerned therein was a lance and some protective devices (e.g., shield, padding), not firearms of any kind (they were not invented).

3. It specifically links the use of the arms to service to the king.

4. It makes the possession of the arms an absolute duty; no one has ever interpreted the 2d amendment so; in fact, it is clear at the time of the Revolution, arms were rare, which was one of our biggest problems in fighting the British.

5. It specifically limited the arms possessed by each man to what he would need to service the king. This would seem to rule out the idea that possession of arms was a right for any other reason.

6. It refused the arms to Jews and non-freemen, a rule which would indicate that it only applied to those who would be expected to support the king.

Although the gun lobby plays it down, there can be no doubt that, by its very language, the framers were thinking of the militia and the defense of the state when they wrote the amendment. Instead, the gun lobby argues that the words relating to the militia are a “preamble”. They argue that preambles are not part of the law and should be ignored. The anti-gun lobby argues that you do not ignore preambles, were this one, when they are necessary to interpret the statute, in this case, the constitution. I cannot accept the gun lobby’s theories. There is a preamble to the constitution, but there is no preamble to any of the bill of rights. To call it that, is merely rhetoric, and makes no sense.

However, just as pathetic an argument is one of the theories being put about by the anti-gun lobby that, since the constitution also provides that the militia may be used by congress to put down insurrection, this must refer only to a militia for the purpose of putting down slave insurrections. Their logic continues that since we no longer have slaves, there is no purpose to the militias and the amendment no longer has meaning. Obviously, this is nonsense. Insurrection was a general problem. there were two famous ones in the early days of our country (the Whiskey Rebellion and the Shays Rebellion). It cannot be reasonably limited to slave insurrections, however much that may have been a concern at the time. If that is the best that they have to rely upon, they will surely lose. But, they do have better arguments.

One of these arguments is, of course, why did the framers put in this phrase about the militias, if it has no meaning? No words in the constitution may be taken to be meaningless.

Another strong argument, in my humble opinion, raised by the anti-gun lobby is that the very first article in the constitution itself, i.e., made prior to the bill of rights, gave congress control over the state militias in everything except picking officers and training the troops according to the rules congress made. This did not go over well with the states which had a fear of the central government (one of the main concerns fought over at the constitutional convention) and standing armies. When the states ratified the constitution, a number did so while proposing bills of rights. One of the most well known debates on ratification occurred in Virginia. James Madison, who is usually given credit as the main drafter of the bill of rights, was part of that debate, and was fought by George Mason and Patrick Henry among othgers. The second amendment was successful in relaxing some of the anti-constitution crowd concerns by making certain that the federal government could not disarm them.

George Mason was a constitutional delegate who is largely ignored (well, he was on the losing side at the convention, but has had great historical influence). He wrote proposals for a bill of rights in the Virginia ratification process, the inclusion upon which he was quite insistent. Number 17 on his list stated:

That the People have a Right to keep and to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free State; that Standing Armies in Time of Peace are dangerous to Liberty, and therefore ought to be avoided as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the military should be under strict Subordination to, and governed by the Civil Power.

This language was an expansion of Virginia’s own bill or declaration of rights, also drafted by Mason at the time of the Revolution. It stated:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

The differences are quite important to my mind. Virginia’s own constitution says nothing about the people having a right to bear arms for self defense purposes. Mason’s proposal at the convention opens with a specific clause – that the people have a right to bear arms (leaving aside for now what “the people” and “right to bear arms” may have meant to them at the time). This was much firmer than the Virginia constitution’s language, which sounds almost philosophical and advisory.

But, when Madison’s bill of rights was proposed, composed from suggestions by the various states, the language of Mason’s proposal, upon which it was obviously based, was shifted, and its meaning further clouded by the house and senate committees. Now, it led off with what some say is the purpose and others, a limitation – “A well regulated militia, being necessary to the security of a free state,” and, after a mere comma instead of a semi-colon, it gives the directive – “the right of the people to keep and bear Arms, shall not be infringed.”

Madison had examples before him from other states which could have included the right to bear arms for individual self defense. He ignored them. The house and senate did not debate them. No one considered it at all.

Both pro and anti-gun proponents present plain language arguments. On the pro-gun side, they argue that the amendment plainly states that there is a right to bear arms stated in the bill of rights. They are clearly right that if the second amendment does not provide an individual right, it is the only one of the bill of rights not to do so, which seems unlikely.

However, too many times have I heard those on the right who argue for this premise also argue with respect to the first amendment provision on religion, that the entire amendment must be read together (that is, the prohibition of making laws respecting religion together with the prohibition against infringing religion) to allow them to willy nilly drop it here). How then can they reasonably argue that an amendment which is plainly talking about militias should be read as if it doesn’t? It is a strong argument which feeds right into the anti-gun lobby argument – if the framers wanted to prohibit denying a man his arms, they merely had to state it like they stated the other prohibitions – e.g., “Congress may make no law respecting an individual’s right to bear arms.” Why cloud it up with this militia talk if there was no need for it?

The words “right to bear arms” poses similar problems. According to noted scholar, Garry Wills (admittedly, one of my favorite historians), “bear arms” or just “arms” historically refers only to military duty, right back to Beowulf through Shakespeare and up through English history. The problem with this line of reason is that the other side claims that there are other examples of “bearing arms” or “arms” having a meaning that can be applied to individuals.

As has been shown by some commentators all of the mentions found in congress, now a search done with the aid of digital technology, it all, I say again, all, had to do with the right to bear arms in connection to the militia, and not at all self-defense. This is a very powerful argument. Research shows that this is true up through 1821, a full generation after the bill of rights.

A more recent study by history professor, Nathan Kozuskanich (Ohio State), using modern technology (all of the original documents, newspapers, congressional record digitalized with a key word search available) shows that overwhelmingly, but not universally, the founding generation used the word “bear arms” only in a military context. This is fairly devastating to the gun lobby’s argument. He also claims that the examples (1763-1791) which do not support that reading are merely ambiguous.

Kozuskanich also argues that Americans who owned guns at that early time were often subject to military regulations. This in itself is not so devastating an argument to me, although it is certainly a powerful legal argument. The founding fathers often passed laws that violated the constitution (the most famous of which were the alien and sedition acts). However, since both sides regularly rely on what the founding generation did, it should be hard to make that argument (not that this ever really stops anyone).

The gun lobby has its own long list of historical quotations which they claim show that “bear arms” includes people bearing arms for self defense or any other purpose they claim. They use dictionaries, English law, statements in the Federalist Papers and other commentators as well as quotes from the various states. They quote Madison’s own notes which state that first of all, the amendments relate to private rights.

Unfortunately, the examples on each side have been far too detailed on both sides to even pretend to do it justice here, and there is no point if I am not comprehensive. You can read the briefs and articles yourself, if you wish to get beyond policy arguments. All I can say, is that having read the the briefs of the two parties and the government, and several of the other briefs submitted by interested parties, listening to the argument before the Supreme Court, and without having any pre-existing agenda myself (really, I could care who wins), I found, to my surprise, that the historical arguments of the anti-gun groups were much more persuasive to me than those submitted by the gun lobby. If I were on the Supreme Court, I would likely side with the District of Columbia. The right was more likely meant to be collective and to preserve the state’s ability to arm their own militias.

Of course, another person (who actually reads all this stuff) might say, like many of the Supreme Court Justices, that the pro-gun lobby has the better of the argument. However, it will be of interest to me to see how the court deal with the overwhelming evidence of the meaning of the relevant terms to the congress that framed them, as opposed to the shotgun approach taken by the pro-gun lobby.

Another argument made by the anti-gun lobbies supports this, at least legally. Whether judges are “conservatives” or “liberals,” they have always been persuaded by the fact that we have always done something a certain way for 200 or so years, whatever the constitution may say. Frankly, the fact that we do something a certain way for a lot shorter period of time has been used by both sides to justify not changing it, even a matter of a few decades. And, certainly, there is no doubt that we have had regulations on guns, or banning of the individual right for individuals to "bear arms" for a long time. In D.C., for example, since 1801, soon after its founding, and well over two hundred years ago.

I recognize that this presents some paradoxes, the main one being, why would they place a state right in a list of individual rights? One answer might be that the framers weren’t thinking so rigidly as we are now. If one of the rights they wanted to add in was about the “the people” of the state instead of an individual, then that is what they did. Madison's private notes, after all, were private notes, and those who fiddled with and voted on the language may not have considered his opinion at all.

Despite this, however, it should be noted that a number of scholars on the left have recently gone along with the arguments of the right, perhaps even the most revered of them all, Lawrence Tribe, although he argues that the D.C. statutes are merely reasonable restrictions that do not impair the constitutional right he has come to believe in. This certainly makes the anti-gun’s arguments more difficult to support, as we have a world which is often more interested in who is supporting an idea, rather than what the basis of it is.

This has led some other anti-gun proponents to acknowledge that they very well might lose this issue and instead to complain that it will make the world more dangerous. This is, of course, the very un-constitutional policy arguments that most constitutional attorneys eventually engage in, particularly when they are losing. It is also difficult to support in face of the fact that there are some states in which every adult may have a gun and murders are not rampant. However, the argument is often made that not every state is alike, and it is the very urban states in which their will be a serious problem.

Most lay people on both sides who argue about these things also really only care about the policy arguments and could not be bothered with what James Madison or some English statute said eight centuries ago. The gun lobby simply believes that people need to defend themselves and others. They believe that they may need to go up into the hills to fight off the central government (well, I guess it could happen someday) and that the crime rate will go down. The anti-gun lobby believes that this is a boon to criminals, that the crime rate will sky rocket, and that a bunch of men with hand guns and rifles have no chance against the federal government anyway should that ever happen.

To most people, that is what the constitution means – whatever they would like it to mean. Frankly, that is what it means to most judges and lawyers too, however much they pretend otherwise. And, as you can see from the mess above when you try and pay attention the legal minutia, maybe that is all there is too it anyway.

The anti-gun group has good reason to think it will lose. Right now, the right controls the Supreme Court in about a 4 7/8 to 4 1/8 proportion. By using these weird fractions, instead of 5 to 4, I mean that the one judge, Anthony Kennedy, occasionally swings over to the left, and determines all majorities on the court (every single 5/4 decision last term). I see no reason to believe that he will swing left in this case. However, his questions at the oral argument would naturally lead one to believe that he has made up his mind in favor of the expansive interpretation in favor of a private right. My guess is, he will be asked by the chief justice to write the opinion for the majority.

I don’t believe that the world will change that much should the gun lobby win, as is likely. If the second amendment prohibits local legislatures from prohibiting gun control at large, it will not prevent them from heavily regulating them. Although there will be an issue as to what the standard will be before regulation can occur (don’t worry about this; it is legal mumbo jumbo) if the purpose of the law is to prevent crime or save lives, that will easily pass the test.

What will be regulated then if the second amendment is found to contain a constitutional right for individuals to own and carry guns? Well, don’t count on this being a constitutional right that kids possess. Or felons. Possibly, some safety training may be allowed to be required as well as gun locks, no concealed weapons in public, bans around schools and security, etc. Moreover, the courts will probably follow the old Miller decision in that the amendment only applies to arms used at the time of the bill of rights or their descendants. The right will not likely include shoulder fired explosives or other high tech weapons. Virtually everything that is on the table now except the ability to keep ordinary people from owning or possessing common firearms in some circumstances will probably need to be litigated and will be on the table.

As for me, I live in a state where I could buy a gun if I wanted to anyway. Will I? Let me put it this way. Recently, I bought a hunting knife to take with me on hikes. Seemed like a good idea in case I had emergency whittling to do. I flipped it up in the air absent mindedly while typing and nearly performed a surgical operation on myself that makes me now prefer to sit with my legs closed. Don’t think I’ll be taking advantage of any individual right to bear arms soon. Don't want to blow anything off.