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Monday, June 28, 2010

Gun Rights Predicated on Regulation

Among other juicy topics, the Supreme Court is expected to hand down a ruling on gun rights today. That got me wondering: does the Second Amendment contradict itself?

I doubt that: the Founding Fathers were smart enough not to write illogical statements into the Constitution (well, except for that three-fifths clause). The contradiction I feel coming lies more in the irrational reasoning of folks like the Second Amendment Sisters, who think you ought to be able to pack heat anywhere, anytime, or Governor Rounds and far too many of our state legislators, who think you should be able to make and use guns and ammo in South Dakota without any federal regulation.

Did someone say regulation? Let's review 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.

First phrase: well regulated Militia. The Founding Fathers framed the proper keeping and bearing of Arms in the context of regulation. The Constitution gives Congress the power to call up, organizing, arm, and discipline that militia. Our right to bear Arms appears to exist, in the Founding Fathers' minds, under the assumption that Congress gets to regulate those Arms.

Compare the phrasing of the Second Amendment with its neighbors. No other Amendment feels the need to explain itself. The First Amendment does not say why we need freedom of religion and speech ("A well exercised and expressed conscience, being necessary to the functioning of a free Democracy and personal integrity..."); it goes right to business, saying "Congress shall make no law...." Same with the other amendments: Washington, Franklin, Hamilton, et al. don't explain why the government can't quarter soldiers in peacetime or search without a warrant or impose excessive bail. The later amendments don't go there, either: the Constitution doesn't tell use why we can't have slaves or why we should have an income tax or why we should not or should have a stiff drink.

The Second Amendment is an anomaly, specifying the context motivating its protection. And that context is not individual self-defense or pheasant hunting or a God-given right to blast old buckets with your AK-47 (that happens here at Lake Herman). The Second Amendment explicitly assumes our guns exist in a framework of regulation to serve the State. If you want to posit other gun rights and oppose gun regulation, you can't rely on the Second Amendment; you have to hope for judicial activism.


  1. If there was a period after Arms, I'd say you have an argument.

    However, that pesky "shall not be infringed" is hanging out at the end.

    When I read that, I get the impression that the founders want everyone to have the choice to own firearms, without any government intervention.

    The big question is, where do we draw the line.

    I keep my gun collection pretty conservative. Good enough to kill some critters, and if need be, an intruder at the front door. A shotgun and a rifle does the job just fine.

    I really don't have a practical need or desire to own a fully automatic .50 caliber machine gun that costs $1.50 every time I pull the tigger. But that's my choice.

    I am now going to wait for Bob Ellis to school me on being a liberal because I choose not to own a .50 caliber fully automatic machine gun.....

  2. Cory, scary stuff... You ignore the backdrop of history in which this was constructed and the historical context of the word militia. The very clear and sage wisdom of allowing a free law abiding man the right to be armed is the cornerstone of this free country.

    To see the folly of disarming law abiding people, simply get rid of all your guns and place a large sign in front of your house declaring that your residence is gun free. Do that also in Phoenix and other large metropolitan areas and see how long those residents enjoy the mantle of unobstructed freedom in their own abodes..

  3. Mark, I don't get your "point" about punctuation.


    Stace, interesting. Are you saying that a "regulated militia" and "the Government" are two different things? Who then would be doing the "regulating?"

  4. Cory, your cramped 21st century reading and application of the founders 18th century construct isn't even close. You're a debate fiend. We expect you to do the research. Read the founders documents and 18th century arguments for this amendment.

    As Mark wrote, the founders' milita was all able bodied men. Think modern neighborhood watch or volunteer firefighters a hundred years ago (when the bell rang all able bodied came running).

    "Regulated" for the founders refers to PERSONAL equipment that each able bodied man was required to provide: number of flints, number of patches, silk cloth, number of balls, quantity of powder, etc. This was not public property drawn at some invisible armory - this was PERSONAL property required to be provided along with oneself for the security of a free state. The "regulated" equipment varied by militia, region, and state.

    The imperative purpose for the Second Amendment was to ensure the government feared the people, and that the people never feared their government. The founders ensured the sovereign PEOPLE had the right to forcibly, if necessary challenge illegitimate actions or usurpation of their liberty by their government. Founders' documents say little to nothing of personal safety, hunting, or the raft of other modern after-the-fact and irrelevant excuses to support the Amendment.

    You may have confused "regulated" with "organized". You are in the militia - the unorganized militia. The Militia Act of 1903 (amended 1908) remains in affect. The organized militia essentially became the National Guard. The unorganized militia is all able bodied men between 17 and 45 who are not part of the organized militia.

  5. I agree with Mark. it is and always will be about, where we draw the line. Nuclear, chemical and biological armaments are all arms where, most everyone would agree, infringement by government regulation is acceptable. The basic right to small arms is a guarantee of the Constitution, however no argument can be made that this right has made us a safer nation, the fact is, your house may be more likely to be robbed if you have guns, because the guns will be what the thieves are after. There is also plenty of evidence showing that disarming law abiding citizens is folly as Stace points out.As long as the citizenry and the criminal element, both have the capability to be equally armed there will be a type of detente, but to unilaterally disarm the citizenry makes no sense whatsoever. Gun ownership is a freedom and like all freedoms it can be abused, the negative repercussions of that abuse are part of the price we pay to live in a free society.

  6. Questions Cory hates6/28/2010 2:34 PM


    If the First Amendment starts out saying "Congress shall make no law", then why is South Dakota or any other state bound by the First Amendment?

    Steve Sibson

  7. Steve,

    The Fourteenth Amendment prohibits states from usurping individuals' rights without due process.

  8. Mark, I do agree that the phrasing and punctuation of this amendment offer lots of room for interpretation. And I am intrigued by John's reference the original meanings. More on that in a moment...

    But first, Stace, it's worth noting that I'm not focused on "disarming law-abiding people." I'm not even calling for gun control here. I'm questioning whether the Second Amendment protects the sort of unrestricted keeping and bearing of arms that I hear the Second Amendment Sisters and other gun nuts advocating.

    Now, John, I did find this interesting interpretation of "regulated" that says the idea is that we able-bodied citizens "regulate" the federal militia by packing heat to keep them in line. Does that square with what yo're saying?

    If so, then the Second Amendment either collapses in irrelevancy or explodes in justifying individual possession of nuclear arms (the extreme Mark rejects). You and I and a few neighbors might muster enough weapons to deter the sheriff from serving papers or foreclosing on our farm. but all the guns in South Dakota did not stop the Patriot Act, or warrantless wiretaps, or TARP, or the stimulus, or health care reform, or whatever other federal action various patriots might cite as tyranny. We don't have the firepower to "regulate" the feds into submission.

    I am curious, John (and this isn't just a debate question: I want to know, as I can see the possibility of having to use force to unseat an illegitimate government as clearly as the Founders did): how much firepower would we need to protect our rights now in the way your Second Amendment interpretation intended? What threat level from our closets and garages would make Uncle Sam and the U.S. Marines back down? Small arms in every home? Stinger missiles? Chemical weapons? This question was no big deal in 1787, when a man with a good horse and musket stood a fair chance against the best-equipped soldiers in the world. What level of citizen arms offers that same deterrent force now?

    Just a thought: maybe in 2010, the best arms we citizens have for keeping the government in line are not guns, but computers?

  9. (Bill, I'll grant Mark leeway here. I read his commetn as saying that, whatever the reason given in the opening of the Amendment, the line says "shall not be infringed." I think he's saying the second half utterly outweighs interpretations we might derive from the first half.)

  10. Cory, the article you provided incorrectly asserts the militia was 'every able bodied man who owns a gun'. That is incorrect. A "militia" was/is every able body man (now days between 17 and 45). The "well regulated" refers to the regulations adopted, i.e., the weapons, amount of powder, number of balls, silk, wads, flints, possibles bag, hatchet, knife, etc., that each was to provide.

    Using historical examples from the founders era, it is arguable the Second Amendment is expansive. The founders knew what multiple firing weapons were. Though uncommon in the smoothbore musket era, nevertheless the founders found no threat to ban or further regulate multiple firing weapons. Similarly the founders well knew what concealed weapons were (derringers, many had multiple barrels) and so no need to regulate them. Some in the founders era also had cannon and other "weapons of mass destruction", yet the founders saw no inherent reason to regulate those. Practically it is irrelevant whether multiple projectiles come from multiple barrels or one rapid-firing barrel. Thus modern rules on fully automatic weapons are constitutionally, historically arguing - suspect and dubious. The same historical and constitutionally based arguments are applicable to modern rules constraining larger weapons. But no "government" worthy of totalitarian rule-making will tolerate too many or too large weapons that could challenge its monopoly on violence. [As an aside, the Swiss have automatic weapons in essentially the home of every able bodied man, and all US citizens have the capability of having rudimentary chemical weapons in our homes (as we read about too frequently].

    On the other hand during the Revolution both sides frequently practiced draconian gun control. Tories no more wanted Patriot neighborhoods armed, than Patriot villages wanted Tory populations armed. Even nearly a century later it was common in western US towns to practice gun control - checking guns with the sheriff upon arrival and claiming them at departure. (Apparently some who spent months looking at the back of a cow couldn't be trusted with firearms in "civilization").

    The assertion that we don't have the firepower to force a renegade government into legitimacy of the sovereign people is flawed, arrogantly or defeatistly fatally flawed. History is replete with examples of underdogs slaying Goliaths. Will-not weapon is determinative. Evidence the "pajama clad" Vietnamese disposing of the French, then the US; the Algerians disposing the French; Iraqis disposing the British; the Afghans disposing nearly 18 would-be imperial conquerors over 2000 years; etc., etc.

    The proposal that the computer supplanted the force of arms or civil disobedience is, well, quaint, and dead - when the president throws the contemplated kill switch on the internet.

    Perhaps the real intellectual counter to the modern necessity of a Second Amendment, if one exists, was invented in the 20th century. Civil disobedience, organized civil disobedience threw the British empire out of India, was largely responsible for the grossly belated civil rights reforms in the US, and threw apartheid out of South Africa and other nations. Yet organized civil disobedience may take decades to force an illegitimately acting government to act legitimately; while an armed sovereign people theoretically may be able to accomplish restoring governmental legitimacy in a fraction of the time. But at the time of the founders organized civil disobedience was not a viable, proven, practiced, or referenced alternative so they relied on what they knew and studied that worked-an armed citizenry.

    Please rest assured I have no axe to grind with this government; rather my concern is for an accurate and correct recollection of the founders' experience and their lessons for furthering our republic.

  11. No problem, John: I won't accuse you of any particular anti-government rhetoric. But it does seem that the focus of the Second Amendment in both of our interpretations is a popular check on government, not vigilante justice against common crime.

    If the Second Amendment is expansive, my question remains, how expansive? What is the test we impose to determine the level of armament citizen are obligated to maintain to keep their government quaking in its boots? Sure, the Vietnamese and Afghanis have had success with less advanced weaponry, but couldn't they argue that they would have been able to more quickly effectively restore their desired governments with more advanced weaponry in every hut and cave? If, as you say, civil disobedience might take too long, can't I say that pistols and IEDs might take too long and that we should allow backyard inventors (American and Taliban alike) to build their own nukes? How do the examples of Vietnam and Afghanistan help us draw a moral or practical boundary to the expansiveness of the Second Amendment? (And should we really be looking to Vietnam and Afghanistan for examples of freedom fighters using their right to bear arms to establish legitimate government?)

    Let's also consider what you say about the evolution of civil disobedience. Suppose we accept your statement that the Founders had no Gandhi example to demonstrate the viability of nonviolent resistance (but what about Jesus?) and thus were perfectly reasonable in enshrining what they knew—armed resistance—in the Second Amendment. Didn't they do the same thing with slavery, leaving that proven means of achieving national economic aims in place largely because they didn't have a viable, proven example of mechanized labor doing the same job? Once Eli Whitney and John Deere provided a new ag-industrial model, slavery was obsolete, and we got the 13th Amendment. Might not Gandhi and King have made the Second Amendment similarly obsolete?

    [Caveat: owning slaves is morally reprehensible. Owning guns is not. I offer the above analogy to slavery simply to explore possible historical parallels between slavery and the right to bear arms as practical policy and the thinking that shaped our Constitution.]

  12. Questions Cory hates6/30/2010 8:46 AM

    "The Fourteenth Amendment prohibits states from usurping individuals' rights without due process."

    Yes, and the Federal Governemnt is forcing states to usurp individuals' right to religious liberty by establihing the religion of humanism in government schools.

    [Cory, what is your anser to the original question?]

    Steve Sibson

  13. This is a good thread and I'm sorry to be late to it. Hope it's not gone stone cold.

    "Regulate" is there in black and white. The debate today is about the extent of regulation - how far can we go before the "right of the people to keep and bear" is infringed?

    The Preamble includes "provide for the common defense" as a purpose for framing the Constitution. The Social Contract theorists, who were influential in the Founders' thinking, said that we are absolutely free but may surrender some measure of freedom for a common purpose. Defense is one of these - in fact, the purpose with which conservatives most agree - we surrender some measure of the right to use defensive deadly force and invest it in the police locally and the military nationally. Even if we believe that we can shoot at an intruder in our home, we don't believe that, if he gets away, we can take our gun and chase him across state lines and kill him.

    It would seem that reasonable regulation, such as safety & competence certification and background checks, would have more of a chance and probably be more fruitful than efforts at symbolic and largely ineffective "bans." Seriously long incarcerations for violent crime would be appropriate and probably find bipartisan support.

    What we have in the 2nd Amendment reflects a culture in which guns were an important tool, and treated much more seriously and respectfully. We have a sloppy gun culture right now - the right has to give some ground on the "all about the individual, no questions asked" position (which makes no sense with the "regulatory" language of the Amendment), while the left has to give up on symbolic bans that will not be effective and are loaded with unintended consequences - "infringements" on the people's right. The Amendment, I think, envisions a people competent to participate in the common defense - people respectful of the dangerous nature of weapons but able to wield them in time of need.

    I don't think your identification of the Amendment as an "anomaly" goes very far. In the Ten Commandments, the one about honoring parents doesn't fit the pattern - as the New Testament points out, it is the only one with a positive promise attached to it. I don't know any school of Biblical interpretation that argues for cutting to nine. The stylistic difference in the Amendment is there, but the framers clearly positioned this in the part of the Constitution retaining citizens' rights over/against the state.

    What I like about this debate is that both sides are grappling with the plain language and seeking the framers' intent. None of the "penumbral" bs that stuck us in the abortion swamp.


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