To Arms

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American History, Supreme Court, The Constitution

I wrote yesterday, in a mostly flip way, about the appeals court decision that struck down a DC gun control law. David Nakamura and Robert Barnes write for the Washington Post:

The panel from the U.S. Court of Appeals for the D.C. Circuit became the nation’s first federal appeals court to overturn a gun-control law by declaring that the Second Amendment grants a person the right to possess firearms. One other circuit shares that viewpoint on individual rights, but others across the country say the protection that the Second Amendment offers relates to states being able to maintain a militia. Legal experts said the conflict could lead to the first Supreme Court review of the issue in nearly 70 years.

Some time back I researched the history of the individual rights v. collective rights arguments. I don’t have my research findings any more (that was about four computers ago), but I do remember that the bulk of historical documentation and scholarship weighed in on the “individual” side. Yes, the wording of the clause is ambiguous. But if you put the writing of the amendment in a historical context, it seems the amendment was intended to protect an individual right to own firearms so that the federal government could not deprive states of their militias. (Under the Militia Act of 1792, every citizen enrolled in the militia must own and maintain his own firearm.)

As I said, I don’t have the research notes any more and I don’t have time to re-research the question. I do remember that a lot of early American documents and case law seemed to assume the right was individual, not collective.

The District’s law bars all handguns unless they were registered before 1976; it was passed that year to try to curb gun violence, but it has come under attack during the past three decades in Congress and in the courts. Yesterday’s ruling guts key parts of the law but does not address provisions that effectively bar private citizens from carrying guns outside the home. ….

…The suit said the ban on handgun ownership violates the Second Amendment, which states: “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.”

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, saying the amendment was tailored to membership in a militia, which he defined as an organized military body.

The case moved to the appellate court, with the National Rifle Association siding with the pro-gun faction, while the Brady Center to Prevent Gun Violence joined the District. Reflecting the case’s national importance, various state governments lined up on each side.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the District’s position, that a militia means just that. Others have ruled that the amendment is broader, covering the individual rights of people who own guns for hunting or self-defense.

The Supreme Court addressed the Second Amendment in 1939, but it did not hold that the right to bear arms meant specifically that a person could do so.

Yesterday’s majority opinion said that the District has a right to regulate and require the registration of firearms but not to ban them in homes. The ruling also struck down a section of the D.C. law that required owners of registered guns, including shotguns, to disassemble them or use trigger locks, saying that would render the weapons useless.

If this case does go to the Supreme Court, I suspect the SCOTUS will either decline to take it or uphold the appeals court decision.

One of the things “everybody knows” about liberals is that they are opposed to gun ownership. But this perception comes from NRA fundraising letters (the liberals are going to take away your guns!) not reality. For years this has been a great wedge issue for the GOP.

It turns out I wrote about the DC gun ban in September 2004. And in that I linked to this Harold Meyerson column

Election Day approaches, which means it is time for House Republicans to run fully amok. Today, the House will take up a bill by Indiana Republican Mark Souder to lift the gun controls in the District of Columbia. Souder’s bill legalizes ownership of semiautomatic weapons and armor-piercing ammunition. How this would increase security around the White House and the Capitol is something that Souder and Co. have neglected to explain, but no matter. The House Republican leadership knows the bill won’t pass the Senate. The only reason it was even introduced was to force House Democrats — a number of whom represent gun-loving districts — to vote on this nonsense.

In other words, to vote against possession of armor-piercing ammunition near the White House makes one a “gun grabber.” The appeals court decision deprives the wingnuts of one of their talking points.

So far I’ve found no opposition to the decision on the Left Blogosphere. If the righties were hoping we liberals would be up in arms, so to speak, about this decision, I suspect they are disappointed. Ron Chusid writes:

In reviewing the reaction in the blogosphere it is clear, as anticipated, that intensity of support for the right to own guns is greater on the right. While this is a lower priority on the left, the sentiment is also with the rights of the individual. Even where bloggers have not commented it is noteworthy that there is no outrage over the court’s decision as would be expected if restriction of gun ownership was really a goal of liberals.

Ron links to several liberal bloggers who agree with the decision. These include Taylor Marsh, Matt Yglesias, Jeralyn Merritt, and (naturally) the Gun-Toting Liberal.

Personally, I agree with what Jeralyn Merritt wrote here:

Being for the Second Amendment doesn’t mean defense lawyers are not liberals. It means they won’t give up any constitutional right, even ones they may not exercise personally. Give ’em an inch and…..besides, the Second Amendment is only one away from the Fourth.

In other words, there’s to be no cherry picking of the Bill of Rights. If one amendment is expendable, they all are.

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17 Comments

16 Comments

  1. Gordon  •  Mar 10, 2007 @10:17 am

    As near as I could tell when I looked into this, the 2nd amendment is a confused compromise (common language, not common purpose) between those who felt individuals (by which they meant white, male property owners – see Dredd Scott) should be free to own guns and those who felt that there should be no standing army. I believe the latter were in the majority, as the dangers of a warped political structure arising from an overly strong military have been well known for millenia (well, to the historically literate). Yet, there was almost immediately a (small) standing army.

    As a resident of rural Maine, I have absolutely no problem with hunting rifles. Handguns make me uneasy. As for assault weapons, it’s long been my belief that combat between humans should use nothing more lethal than quarterstaffs.

  2. maha  •  Mar 10, 2007 @10:43 am

    As near as I could tell when I looked into this, the 2nd amendment is a confused compromise (common language, not common purpose) between those who felt individuals (by which they meant white, male property owners – see Dredd Scott) should be free to own guns and those who felt that there should be no standing army.

    Yeah, sorta kinda. The “federalists” of the time (e.g., Washington and Hamilton) preferred a standing army to militia, but as you say, most others were leery of it. (I discussed this here, in the context of Bush’s “war powers” claims.) The compromise was that the bulk of the nation’s defense would be the responsibility of the militia, which was regulated by Congress but under the command of governors unless federalized. And there was a little bit of a professional military; at the time Washington was inaugurated, as I remember, the entire U.S. army was made up of fewer than 600 officers and men.

    Then, to keep some future despot in Washington from preventing the states from mustering their militia, the Bill of Rights protected an individual right to own firearms. Congress might have ordered the militia to disarm, since it has regulatory powers over the milkitia — Constitution, Article I, Section 8, paragraphs 15 and 16 — but they can’t order citizens to disarm.

    That’s how I understand it, anyway.

  3. Gordon  •  Mar 10, 2007 @11:36 am

    OK, that makes more sense. I read a bunch of contemporaneous stuff, but didn’t bother to make sense of the chronology of the arguments.

    I do still think there’s an element of “here’s language we can agree on, even if we mean different things by it” to the amendment.

    (Reading Barbara Tuchman’s 1984 March of Folly; if she’d lived another 20 years, she could do a dynamite update.)

  4. Bonnie  •  Mar 10, 2007 @2:21 pm

    I thought the District of Columbia fell into a black hole regarding some of the Constitution because they are not a state. They are not allowed representation in Congress, which is more important than gun ownership. While I am not against ownership per se, I am for more control of guns. We have a history of some seriously crazy people buying guns to kill Presidents and other people they don’t like. I don’t believe that the second amendment means for one person to own an entire arsenal to sell to terrorists or any other buyers.

  5. justme  •  Mar 10, 2007 @3:07 pm

    First, let me say I am I agree with Jeralyn also.Which is why I am very disappointed in the NRA.They of all people should understand Jeralyn’s point.So I ask you, where the hell has the NRA been when the rest of our constitutional rights have been under attack?….I’m just sayin….

    I am not in the “take your gun away” camp…even though the wingnuts have shown me they lack the good judgement to have them(see the last 7 years for all the ammo I need to make that case)..However as I read this I kept being reminded of the cartoon in the Micheal Moore film explaining frightened white men.It amazes me that I , a 100lb girl can manage to make it thru life without the “protections” of a gun.I have lived in 30 states,large cities and small.I started out in the world at 12 as a homeless street kid and I spent 5 rough years there with no gun. I was never afraid to face the world without a gun,even when I had every reason to be afraid.So I look at it this way: Those who have guns for “protection” must have some fear issue.I am amazed to learn little old me is braver than your garden variety NRA member.Frankly their fears look a bit unsettling to those of us not addicted to fear.
    We are all responsible for our own security,granted, but here we have a bunch of gun toting thugs at CPAC mocking those who they claim to be weak last week and the irony of it all is dumbfounding.I personally see needing a gun to handle your security instead of being able to handle it yourself to be a bit weak.Sadly guns jam and if you can’t stand up and handle yourself your screwed.
    I am glad I don’t have the fear monkey on my back.What a terrible way that must be to live.And what does it say about those who do live in such a fear based reality?Seems like a fair question to ponder since they want the responsibility of a deadly weapon.
    But if one was anti- gun violence and wanted to see the killing stop…why not outlaw bullets used in handguns?That would a.Not affect hunters b.Allow people the right to bear arms c.Would allow gun owners to have guns and should a militia be needed ammo could be provided for the weapons already owned by we the people(not me).There is no constitutional right to ammo. I am not saying this is my stand on the issue but I am suggesting that more people were killed by handguns last year then on 911 and we declared war on 2 nations over that and spent billions.
    I think,except for automatic weapons I personally am pro choice . I think the gun show loop hole MUST be closed.11 million people are in this country illegally from who knows where, intending to do who- knows -what and as others have said the gun show trade could arm them well..Not a good thing.
    For the NRA not to want that loop hole closed also is irresponsible , it puts at risk the very people the NRA claims to want to protect.
    Just for fun, I have been thinking of jobs for dick cheney when he leaves office and I think he should open a “Hunting with dick” school for kids..but perhaps just requiring every NRA member to go hunting with dick would shock them into rethinking their feelings about guns and who should have them.

  6. r4d20  •  Mar 10, 2007 @3:09 pm

    I agree.

    Firm proponents of strict gun control have always reminded me of the drug warriors. It doesn’t matter that I can own a gun or smoke a j responsibly – the fact that somebody, somewhere, sometime, might possibly be irresponsible somehow justifies prohibition.

  7. Jayman5  •  Mar 10, 2007 @3:34 pm

    No time to make a long post, but justme overlooks a couple of things in her post. As to her being able to survive as a street kid and in large cities & c. she is overlooking the fact that at least in some situations where guns are involved men are more likely to shot than women. Criminals are more likely to feel threatened by an adult male, and, being mostly males themselves, are more psychologically comfortable with using deadly (as opposed to merely coercive) violence againsts other males. This a subtle point, and open to dispute on an abstract or statistical level, but one I think most men would resonate with on a practical level.

    As for banning handgun ammo that’s just silly. If there is any kind of right to keep and BEAR arms that includes handguns then a blanket ban on handgun ammo would be unconstitutional. You can’t bear a small arm that you can’t fire.

  8. justme  •  Mar 10, 2007 @5:55 pm

    Ok.I accept on face value that men are at more risk of being shot.And as I said before, I am pro choice on the issue as a whole.But boy has the last week ever taught me a lot about males and fear..I am shocked…
    Just for fun I took a small poll of my liberal male friends and of my wingnut males friends and I asked them what they feared.The wingnuts had a list, ready to tell me on demand.What wasn’t on their list would be faster to tell you,but everything on their list was equal to some sort of boogie man..while my liberal friends HAD plenty of answers they all thought awhile before their answers came and they worried about things like how the world would be left for their children ..without exception there was no monster under the bed they feared, while righties actually repeated that they feared”terrorists who wanted to cut off all of our heads”.It seemed to me the difference in asking a child what they feared and asking an adult.Imagine.Adult men in Keokuk Iowa who actually believe the only thing that stands between a terrorist walking into their homes and cutting their heads off and them being safe is a .38.And I am silly??????OK then.
    And as it being silly to outlaw ammo, you stressed the word BEAR.. so I went to look it up.Merriam Webster Bear: To move while holding up or supporting; equipped or furnished with. Or lets go further…To “Bear arms” as defined by Merriam Webster also,means “to carry or possess arms”.. nothing about bearing meaning the right to fire a gun or the gun having bullets.Perhaps you are mistaken about what “bearing” means.Bear it all you want, but there is no constitutional right to use it.Bearing does not mean using.You can bear a gun without bullets.Therefore no rights violation.Whether your gun is usful or not is not the constitutions concern.Your right says bear arms.Not bullets.You can bear it, you have not been given the right in the constitution to discharge it.Or to keep and bear ammo.You just imply ammo is written in and it is included because your gun needs it…but the words are not there.Ammo is afforded zero constitutional protection.And “Bearing arms” does not mean a loaded gun..somehow meaning has been assigned to that word BEAR that does not exist….as a pro choice person I say keep your gun, it’s all good..but don’t grandfather things into the constitution that just are not there.I am kinda fond of the document and it seems to me the words were written with great care to hold up over time.
    It seems to me some types of ammo have been banned? Armor piercing perhaps?Was that deemed unconstitutional?I do not know the circumstances or if it has been tested..I will try to look later if I have the time.
    I am not for banning guns.We have an over population of deer in Iowa and I am grateful to the hunters.Their service saves lives.I just don’t believe you have a right to bullets that is backed up by the constitution.
    I am off to the neighbors where I will go bearing cookies…no bullets. 🙂

  9. Matt Connolly  •  Mar 10, 2007 @6:06 pm

    If the Supreme Court declines to take the appeal that will be upholding it. Jeralyn Merritt should learn to count, one away from the Fourth Amendment is the Third Amendment. Does anyone know what that is, it is either not using the name of God wrongfully or is it keeping the Sabbath. I’m really confused with that but I think it is the Sabbath thing because everything once was closed on Sundays.

    On the gun issue, the DC Circuit is absolutely right and the Supreme Court will take the case. The latter part reads, “the right of the People to keep and bear arms, shall not be infringed.”

    This Amendment is a follow up to the Declaration of Independence’s statement: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, . . . .”

    You can’t do much about a bad government unless you can fight fire with fire. That’s what the founders thought. That’s why they gave the people the right to keep arms so that if the government took away our rights then we could resist. Imagine if the Iraqi people did not have the Second Amendment. They never would have been able to put up the fight they are doing against the Invaders.

  10. maha  •  Mar 10, 2007 @9:15 pm

    If the Supreme Court declines to take the appeal that will be upholding it.

    Technically, it isn’t, but it’s also not reversing it.

    Jeralyn Merritt should learn to count, one away from the Fourth Amendment is the Third Amendment.

    No, the third amendment is next to the second amendment. The fourth is one away.

    On the gun issue, the DC Circuit is absolutely right and the Supreme Court will take the case.

    The might, they might not. I wouldn’t be surprised if they declined to hear the case. That would mean the appeals decision stands, but it might in effect pass the buck on the constitutional issues to a future SCOTUS.

  11. VJB  •  Mar 11, 2007 @1:14 pm

    I would have thought that the formation of the National Guard would have obviated the need for private possession of military-type firearms. Such a requirement for home storage of militia weapons in Switzerland reportedly results only in suicides and the occasional armed crime (from a news item on the recent inadvertent ‘invasion by Swiss of Liechtenstein’–have to find link)

  12. maha  •  Mar 11, 2007 @1:55 pm

    I would have thought that the formation of the National Guard would have obviated the need for private possession of military-type firearms.

    It does, but that’s not the point. If the Second Amendment is understood to protect an individual right, then it protects that individual right until the Amendment is formally revoked.

    I explain it a little better in this comment.

    If the right were a collective right tied to militia service then of course the Second Amendment doesn’t apply to anybody any more. But as I said in the post I don’t think that’s what was intended.

  13. pecunium  •  Mar 11, 2007 @4:10 pm

    justme: To bear arms is pointless if there is no way to use them.

    If I were to restrict the materials from which a quarterstaff could be made to nothing but open-cel styrofoam, would it be an arm?

    Or if the Gov’t were to say, You may have a driver’s license, and a buy a car, but gasoline is forbidden…?

    The banning of all handgun ammunition is, in effect, a ban on handguns, because they cease to function as firearms.

    Matt Connolly: The odds of the SCOTUS taking the case are slim. The only reason for them to do so is that five of them want to make a political point by establishing precedent at the national level.

    It’s been a long time since the Supremes weighed in on this issue (other than passively; by letting lower court decisions stand).

    VJB: The National Guard is a strange beast (and having been in it for going on 15 years, I know a lot about it). The feds pick up the majority of the tab, in exchange for this they get to tell us how to train, what jobs each state gets, the ranks of all the members, and a host of other details.

    The actual Militia of the state is usually a very small group of, mostly unpaid, personell, who are sneered at by the Army, and the Feds, have no equipment of their own (because the stuff the guard has is, basically, on loan from the feds).

    So the “need” for individual to own guns isn’t gone.

    Secondly, the US Code defines militia as all able bodied males from 17-54, and all females who are on the rolls of the National Guard, so the individual’s right to bear arms as part of that militia is also present.

    TK

  14. maha  •  Mar 11, 2007 @4:58 pm

    VJB: The National Guard is a strange beast (and having been in it for going on 15 years, I know a lot about it). The feds pick up the majority of the tab, in exchange for this they get to tell us how to train, what jobs each state gets, the ranks of all the members, and a host of other details.

    The actual Militia of the state is usually a very small group of, mostly unpaid, personnel, who are sneered at by the Army, and the Feds, have no equipment of their own (because the stuff the guard has is, basically, on loan from the feds).

    So the “need” for individual to own guns isn’t gone.

    Regarding the militia that is enumerated in the U.S. constitution, that militia was rendered into the National Guard by a series of acts passed in the early 20th century. So the National Guard is the militia. Any state militias that might exist other than the National Guard are extra-constitutional — not the militia discussed in the Constitution under Article I, Section 8 — and have no formal role in national defense.

    Clue: If you want to preserve the individual right to bear arms you want to keep it separate from militia membership. If the right to bear arms is a collective one given to members of the militia, then Congress (which has regulatory power over the militia) can order it to disarm.

    I’m gong to repeat what I said earlier:

    The “federalists” of the time (e.g., Washington and Hamilton) preferred a standing army to militia, but as you say, most others were leery of it. (I discussed this here, in the context of Bush’s “war powers” claims.) The compromise was that the bulk of the nation’s defense would be the responsibility of the militia, which was regulated by Congress but under the command of governors unless federalized. And there was a little bit of a professional military; at the time Washington was inaugurated, as I remember, the entire U.S. army was made up of fewer than 600 officers and men.

    Then, to keep some future despot in Washington from preventing the states from mustering their militia, the Bill of Rights protected an individual right to own firearms. Congress might have ordered the militia to disarm, since it has regulatory powers over the militia — Constitution, Article I, Section 8, paragraphs 15 and 16 — but they can’t order citizens to disarm.

    That’s how I understand it, anyway.

    Secondly, the US Code defines militia as all able bodied males from 17-54, and all females who are on the rolls of the National Guard, so the individual’s right to bear arms as part of that militia is also present..

    That’s basically about who is eligible to be drafted. It doesn’t mean that a bunch of able-bodied males from 17-54 can get together and call themselves the militia. Well, they could, but it wouldn’t be recognized as the militia of the Constitution

  15. Jayman5  •  Mar 12, 2007 @12:39 am

    Justme,

    If you accept at face value that men are more likely to suffer deadly harm then why the diatribe on male fear? I’m tempted to be a little skeptical of your informal survey on fear too simply because context is so important about such things. I would imagine your neighbors are afraid of terrorists cutting off their heads because it acts as a circumspection on the kind of choices they can make in the world without a sense that something horrid will happen to them. It’s a bit like fear of a plane crash; irrational compared to car crashes and heart attacks on a statistical level, but plane crashes and terrorist attacks feel like something “done to us” on an existential level. I’m not defending the fear I just don’t think it’s evidence of human irrationality out of the ordinary. And as for your liberal friends, the Left has been howling about “how we’re going to leave a worse world for our children” type fears for much of the past century in a lineage of worry-warting that goes back as far as Malthus. The Catastrophe has been decidedly relunctant to arrive, but the worrying goes on. I don’t know that the second sort of fear is any more rational than the first.

    As for my calling you silly that had specifically to do with your suggestion to ban handgun ammo and I stand by it. It shouldn’t be a decathlon level feat in common sense to grasp that you have a right to private gun ownership because there are circumstances you get to use them for the purpose for which they are made: putting a projectile on, into, or through a target, vegetable, animal, or mineral. You can’t do that without ammunition.

  16. maha  •  Mar 12, 2007 @6:43 am

    Jayman — According to the Department of Justice, males are four times more likely to be murdered than females. And males are almost ten times more likely to commit murder than females.

    So while it might be rational for men to fear other men, one also might ask how rational men really are if they are that murderous and violent. (It always cracks me up when men accuse women of being “too emotional.”) Although I have no objections to your owning a gun for protection, I do think the near-hysterical reaction some conservatives have to any suggestions of even moderate gun control laws indicates pretty substantial (and neurotic) fear.

    And as for your liberal friends, the Left has been howling about “how we’re going to leave a worse world for our children” type fears for much of the past century in a lineage of worry-warting that goes back as far as Malthus. The Catastrophe has been decidedly relunctant to arrive, but the worrying goes on. I don’t know that the second sort of fear is any more rational than the first.

    In fact, irrational fear is the first principle of “movement conservatism.” We liberals are brave and bold creatures compared to conservatives.

    Regarding worry — son, if you ain’t worried, you ain’t payin’ attention.

    The discussion regarding ammunition is now over.

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