March 29, 2008

Second Amendment

Stupid Question ™
Feb. 23, 2004
By John Ruch
© 2004

Q: Does the Second Amendment mean there’s a right to personal gun ownership?
—See You at the Shooting Range, Columbus, Ohio

A: I’ll probably get shot for saying this, but no, that’s not what the Second Amendment means.

Frankly, to completely editorialize, I wish that’s what the Second Amendment to the U.S. Constitution meant. I’m all for private gun ownership, with reasonable restrictions and thorough licensing. But that just isn’t what that poor, twisted, ungrammatical bastard child of an amendment says.

That’s not to say there’s no right at all to have a gun; obviously, there is. It just isn’t a federal constitutional right. (And, to get technical, the constitution protects rights, it doesn’t create them.)

It’s also not to say that the Second Amendment won’t someday be authoritatively interpreted to mean that. For now, the U.S. Supreme Court is studiously avoiding the subject.

Clearly, there is much sentiment—if based as much on constitutional ignorance as anything else—toward such an interpretation. My 2004 almanac, for Pete’s sake, sums up the Second Amendment as, “Right to keep and bear arms.”

That’s how the National Rifle Association’s web site remembers it to: “The right of the people to keep and bear arms, shall not be infringed,” it repeats in its glossy logo.

Why that weird comma after “arms”? Because the NRA, like so many devotees of this bizarre strain of constitutional revisionism, has left out the entire beginning of the amendment’s language (without noting so with ellipses): “A well-regulated Militia, being necessary to the security of a free State,….”

In short, the amendment is about militias, not about private gun ownership.

Sorry, I had to duck from the flying bullets there for a second.

Nonetheless, there can be no informed doubt about this. All the prior state constitutions that this amendment’s language was borrowed from were about arming militias. The entire debate in the Constitutional Convention about this amendment was about militias. The reason its language is so awkward is because it’s a well-chewed compromise about militias.

Everything James Madison, author of the amendment, had to say about it in print was militia-focused. Here’s his early version of the amendment, before other delegates got their knives out: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

It takes heavy-duty selective reading and self-deception to find a non-militia-specific meaning there.

The essence of the Constitutional Convention debate was about federal use of the state militias. (All the constitutional debate boiled down to questions about how powerful a central government should be, as the debate largely still is today.) What the amendment says is that the federal government, essentially, can’t disarm the state militias. (The states, however, were free to.)

Granted, there is the mysterious dropping of the proposed verbiage “for the common defense” after the “bear arms” bit. Modern gun advocates seize on that to say it implies the Founding Compromisers were leaving open individual gun rights. But a more reasonable reading, in context, would recognize that “common defense” was more likely shot down as implying that militias could only be used for national defense of all the states, and not by each state separately for its own purposes.

It was never about some right to personal gun ownership. And why would it be? The vast majority of the population at the time didn’t own a working gun. As historian Garry Wills pointed out in his book “A Necessary Evil: A History of American Distrust of Government” (which is highly critical of the Second Amendment freaks) the American Revolution was plagued by a gun shortage. What few guns militiamen had, they certainly kept—in the local armory.

Only in modern times has the Second Amendment started to gain legal attention. Mushrooming gun ownership is one reason, and the “arms” part dominates current thinking. But it also has gained some attention as a possibly authority on draft laws or the constitutional establishment of a standing peacetime army.

Today, we certainly have a well-regulated militia, the National Guard, and it certainly keeps and bears arms—kept in armories and born on training missions and deployments.

But we also have more private gun ownership than ever before, and, since the post-World War II period, more anonymous urban crime than ever before. The idea that the Second Amendment’s “people” means everybody, “keep” means in your house and “arms” means a home defense weapon has become increasingly appealing. Especially since the private gun ownership boom also includes criminals, and the government response has largely been one of gun restrictions.

That makes the neo-Second Amendment believers understandable, but still incorrect. However, it would be a mistake to dismiss them as mere mis-readers of the amendment.

In the increasing gun-rights frenzy, the NRA and other groups have gathered a bizarre collection of historical footnotes and legal asides to bolster their reading of the Second Amendment. Most of it is idiosyncratic, off-topic and legally meaningless.

The U.S. Supreme Court, which gets the final say, isn’t talking. Last December it declined to review Silveira v. Lockyer, a California case which claimed the right under the Second and Fourteenth Amendments (the latter makes the Bill of Rights applicable to the states) to own a semiautomatic rifle. The 9th U.S. Circuit Court of Appeals had ruled that the Second Amendment applies to militias, not individuals.

The only U.S. Supreme Court case to tackle the private gun ownership issue head-on was U.S. v. Miller (1939), in which it upheld the government’s right to ban sawed-off shotguns, noting that such weapons are not necessary to maintaining a well-regulated militia. (And the weapon was an instrument of crime in the case at hand.)

Some gun-rights groups even still flog truly bizarre cases such as the racist and discredited U.S. v. Cruikshank (1870), an infamous case in which the federal government essentially disavowed its power to control white power from running the South’s state governments.

In that case, the court declared just about every constitutional right, including the Second Amendment, to be “natural rights,” not really constitution-created ones, so the court couldn’t enforce them and the states were free to abridge them—for blacks, specifically. It is true that the case specifically describes a personal right to keep and bear “arms,” but it’s even more true that it was a crazed, twisted attempt to undo the Fourteenth Amendment and could not be taken seriously even in its own time. It has been almost entirely superceded by modern case law.

However, such wackiness does show there is a long-standing assumption, even among jurists (and certainly among average people), that the Second Amendment is all about personal gun ownership. Assumptions are different from directed, focused legal decisions, but they are part of the culture that provide the context for such decisions.

Gun-rights groups have leaped onto the fact that simply by hearing a case like U.S. v. Miller, in which the defendant was an alcohol bootlegger, the court has already recognized that regular citizens, not just Guardsmen, have legal standing to bring Second Amendment cases. To them, this implies that the Second Amendment is about private gun ownership, not militias.

An implication is not a stated decision, they must be reminded. And the other big (if totally bizarre) Supreme Court Second Amendment case, Presser v. Illinois (1886), was primarily about militias, not gun ownership. But they do have a point.

Meanwhile, it’s easy to see why the issue is coming to a constitutional head. Anti-gun advocates are making strong gains, and gun laws are a horrible muddle, varying widely (a simple home-defense gun perfectly legal in one state may be banned as an “assault weapon” in another).

It therefore wouldn’t be terribly surprising if the Supreme Court did eventually rule that there’s a Second Amendment gun ownership right. But considering the clear militia-based language, it’s also not surprising that it hasn’t.

Author’s Note: The Wills book cited above, as well as other sources used for the statement about low gun-ownership rates in the early US, based their claims on the research of Michael Bellesiles, which has been strongly criticized and shown to be conducted so sloppily that it at the very least casts doubt on his conclusions. Wills himself later disavowed Bellesiles’ work. As I consulted only published sources for this particular piece of information, I was unaware of the controversy. That was sloppy on my part, because Wills cited Bellesiles as a source, but I failed to examine Bellesiles’ work directly, in direct contradiction of my usual practice, because I considered this a minor part of the column. If I were writing the column today, I would use other sources to support the general conclusion of low gun-ownership rates, but I would certainly not use any of Bellesiles’ work, nor speak with the same certainty on that particular facet. I chose to leave the column as is and insert this note so as to explain one of my errors, rather than make it disappear, as errors are often instructive. The bulk of the column has nothing to do with Bellesiles, and, I believe, remains correct.

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