2nd Amendment

According to one law review article I've read, the word "bear" in the 2nd amendment is crucial here. Anti-tank weapons and nuclear bombs would not fall under the amendment's provisions because they are too large for any one person to "bear" them in public.

Well, if one person or small group of people who all agreed with each other were to write it from scratch, they might not write it that way. But when the agreement of a number of people representing a wide body of constituents is necessary to get something passed, I think political compromises seem to be the main way of getting things done. And in many cases they're vaguely worded, just because nobody can actually agree on the details and they think it's better to enact the broad strokes they agree on and let the people who have to implement it sort out the details. Much of the rest of the Bill of Rights is like this. So, however, is much of the legislation implementing the administrative state; it's easier to say that someone should regulate airwaves "in the public interest" than define what that interest is. My point is I don't think it was an oversight or a failure to think through the consequences that led to the vagueness of the Second Amendment (and many other provisions of the Bill of Rights); I think even with the full benefit of hindsight these types of things will get enacted again and again, because it's just harder to get non-vague things passed when dealing with controversial issues.

Yglesias is correct. The language in the second amendment is just a crappy draft embodying political compromises that were designed for a time period long ago with little thought to centuries in the future. The problem is, its the language we have. And we have a strong norm of adhering to the language in that constitution. Which means that, out of that crappy, ungrammatical phrase, some meaning is going to be constructed. That meaning will, most likely, embody political compromises made by our generation, with little thought to centuries in the future. The difficulty, of course, is that we will have to hammer out that compromise while pretending that we're just parsing grammar and history, while denying that we're doing anything overtly political at all, and while using the awkward instrument of supreme court litigation.

Ok. According to this bizarre logic about the word "bear", a person whose arms have been amputated would not be allowed to own handguns, either.

A pet peeve of mine is that most people seem to think that what if something happened to get written into the Constituion 200 years ago, then it makes it "right" in some larger sense of the word. In other words, people seem to think that if the Constitution gives people a right to own guns, then that means the right to own guns is a good thing.

What's so confusing? The word "militia" is right there - not individual or single citizen.

More to the point though what Sanchez misses is the fact that we have all sorts of rights that turn on some government decision: we each have a right to be "secure in persons, houses, papers, and effects" but only when the government decides that a search or seizure of said goods would be unreasonable. Certainly this isn't that different than the kind of oversight that pertains to our right to bear arms.

I wonder. If the 2nd amendment hadn't been added to the Constitution, would the bizarre gun-nut subculture embodied by the NRA ever have become such a big deal?

Jim W - that is some powerful logic, boyo. You say the word "bear" makes no legal sense because people whose arms have been amputated couldn't bear them. Brilliant! What law school do you teach at? Heh.

. But then again, neither does the "individual right" reading which would leave the right of individuals to buy anti-tank missiles and nuclear bombs "shall not be infringed."

Matthew seems fairly ignorant of Constitutional law here. Read the First Amendment (which is an individual right):

"Congress shall make no law ... abridging the freedom of speech"

And yet you can't slander someone, or shout "fire" in a crowded theater. Does Matthew acknowledge these restrictions of freedom of speech?

The fact that a right is "individual" does not make it absolute. There can be reasonable restrictions on such a right, which are generally viewed by courts under certain tests (e.g., strict scrutiny). Second Amendment would be no different than the First Amendment (or any other) in this regard.

All in all, a pretty ignorant post.

The second amendment makes a lot of sense before it's applied to the states with the 14th.

I wrote a big paper in law school on the Copyright Clause, and how, like the 2d Amendment, the Copyright Clause explains to the reader what it's doing there. The 2d Amendment and Copyright Clause are the only two passages of the Constitution to do so.

In the 2d Amendment, the statement of purpose (need for a militia) is given controlling weight (in the Copyright Clause, it is ignored as unenforcable against Congress). Or, at least, it has been. I think that interpretation may be gone now. At least one justice (Thomas) has indicated, utterly gratuitously, that the individual right theory may be correct.

So, it seems likely that--in contravention of some rules of construction--both the statements of purpose will come to be regarded as surplusage.

Chris makes a good point: it's the incorporation of the Bill of Rights that twists the effect of certain passages.

If you think of the 2d Amendment as pertaining to the Federal Government's (lack of a) right to disarm state militias, it makes perfect sense.

The same weird twisting happens in the Establishment Clause, which was intended not to prevent states from establishing religion (since some of the states had established churches and aimed to keep them), but to keep the states' established churches from having to compete with a federal established church.

Arms in 1788 meant muzzle loaders and a sword. Everyone should have one of each. Only a damn liberal could interpret the amendment to mean Uzzis, which the founding fathers did not have in mind.

Only a damn liberal could interpret the amendment to mean Uzzis, which the founding fathers did not have in mind.

You probably don't mean to actually rely on this logic. They also didn't think of airplanes as interstate commerce, or Internet "blogs" as a protected form of speech.

I think it was a joke (at the expense of originalism), dj moonbat.

There's only one 'z' in 'uzis,' and the founding fathers would have wanted me to have them if they had been invented back then because they're clearly awesome.

I think it was a joke (at the expense of originalism), dj moonbat.

I think so. But the "only a liberal" part confuses me.

I don't have a strong opinion either way on this, but I once read somewhere that explosive devices weren't known as "arms" in the 18th century, they were called "ordinance." "Arms" only referred to purely propulsive weapons or somesuch. So, by that logic, anti-tank weapons (and grenade launchers and stinger missiles) all wouldn't qualify as arms.

We do have a right to bear the railguns from Eraser and the super shotgun from Doom, though.

The issue here is what the authors of the amendment meant by "arms." There's plenty of evidence that they meant "small arms," a category that today includes handguns, rifles, shotguns and probably machine guns, but not heavy artilery. There are some machine guns and "assault rifles" that fall in between, which is where it gets tricky.

> f you think of the 2d Amendment as pertaining to
> the Federal Government's (lack of a) right to
> disarm state militias, it makes perfect sense.
>
> The same weird twisting happens in the Establishment
> Clause,

It is almost impossible to remember that the idea and actuality of the Federal Government as all-pervading State/Father and ultimate controller of all activity in the nation only really came into being after World War I. Even the federalization of the Civil War was rolled back in large part (to bad effect in the case of civil rights), just as it had been after previous national "situations". It wasn't until the large-scale industrialized mobilization of WWI that the idea of the US as a State/Fatherland became ingrained in our culture.

Cranky

The issue here is what the authors of the amendment meant by "arms."

No, the issue is how to read the nature between the stated right to bear arms, and the goal of a well-regulated militia.

dj moonbat,

Not really. The "well-regulated militia" phrase is just an explanation of why the right to keep and bear arms is important (in those days, the militia meant every able-bodies [white, male] citizen). It's like if the 1st Amendment said, "a well-informed populace being necessary to the functioning of a democratic republic, Congress shall make no law, etc." That wouldn't change the meaning, it would just give us some insight into their thinking. As Matt notes, this wording was probably a bad idea.

Perhaps some of you out there can tell me this but I honestly have no idea why we should care what the founding fathers *intended. Isn't it up to us to interpret these laws? The constitution/billofrights has no Talmud - there is no binding law or even hermeneutical tradition regarding how a law should be read or understood. So why constantly defer to our 18th century super heroes?

berger,

It doesn't matter what they intended in their secret dreams or something, but it matters what they intended when they were writing the words in question. That's certainly important when we try to interpret the document.

And really, 120 years of Supreme Court decisions sort of make up the Talmud, in your analogy.

The "well-regulated militia" phrase is just an explanation...

You're not a lawyer, I'd guess. First of all, there's a canon of constitutional construction that everything is there for a reason. Nothing is surplus. So the presumption is that "well-regulated militia" is intended to assist or guide the construction of the rest of the passage.

Second, and at least as importantly, that's exactly what the courts have done (yes, I've read them). The "well-regulated militia" requirement has gotten narrower and narrower. Now, the only people who can claim a protected firearm are those who actually possess the weapon as part of some sort of actual (and, I think, ACTIVE) militia service. The federal right to bear arm is very tightly circumscribed by the militia requirement.

Matthew Yglesias writes "Obviously, if you were going to start over
from scratch nobody would write it that way." This is a particularly
explicit case of a common argument which is usually only made
implicitly: "everyone can see that this is an insane law, so it's OK
to ignore it."

Folks, we have a procedure for amending the laws, including the
Constitution. If everyone can see that it's obsolete, then it should
be straightforward to do it. Conversely, if you know damned well that
you couldn't get the supermajority, then spare us the claim that no
one would write it this way today.

Exhibit A for this is all the New Deal stuff around href="en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine">the
switch in time that saved nine: it's an economic crisis,
capitalism and federalism are obsolete, get over it. Exhibit B is the
Bush policy on torture, or the Bush or FDR policy on detention: there
was a surprise attack that killed thousands of Americans, limits on
executive power are obsolete, get over it.

Now, in the general argument over the Second Amendment, I grant that
post-1945 essentially everyone does agree a general arms-related right
written after should be different: we're still perplexed about how to
cope with nuclear weapons even when only a few national entities have
them, and "the Bomb for everyone!" truly is a complete political
nonstarter. However, that doesn't excuse making the "nobody would
write it that way" argument in this specific DC case. A
reality-based clue for free: enough people would write it that way
(and they are sufficiently motivated, well-organized, and loud that in
other circumstances the left doesn't ignore them but invokes them as a
scary threat) that amending the Constitution to allow DC-style gun
bans is a political nonstarter. And a reality-based hint, too: how do
you feel when an ordinary majority political coalition runs roughshod
over your supposed-to-require-a-supermajority Constitutional
guarantees? And would you feel more or less grouchy if they airily
claimed that no one would want those guarantees today?

Sometimes the same people play both sides of the game more or less
continuously. It's really painful, e.g., to see the ACLU working their
butt off to document US torture violations on one hand, and merrily
supporting Victor-Frankenstein-style surgery on their client the
Constitution on the other. It's oh-so-wrong to ignore torture
legislation and treaties and constitutional limits on arbitrary
detention --- and ignoring 2d and 10th amendments is just fine? You're
not helping...

Too many steves-- What evidence do you have for the fact that the first half of the 2d amendment has no legal meaning? Which other amendments in the Bill of Rights have any surplusage? How many of them are 50% surplusage? Why is the 2d amendment different?

This debate is necessary-- gotta puzzle out what the Constitution means-- but in a way it's an artifical game. The First Amendment wasn't relied upon for any Supreme Court decision until around 1917. The Bill of Rights has come to be regarded as providing protection for individual rights in courts, but it's not 100% clear to me that the Framers realized that would happen. Still a debate worth having.

dj moombat: Yes, it was meant to be ironic. Originalism is only used when convenient. Regarding the issues of the internet and airplanes. Commerce is..commerce and expression is expression..both are technology neutral, both are more of a process. Both are, after two beers, suitable topics for a philosophical discussion. Arms are things, technology. The differences between processes and technology cannot be discussed until after 3 beers.

OK, I went too far, it doesn't have "no legal meaning" (although I didn't exactly say that). "Well-regulated" certainly leaves room for some regulation of firearms, though I think we've gone too far in that direction. I know it pisses me off to no end when people try to explain away the 9th and 10th Amendments.

I should mention to everybody that since the Supreme Court heard its one big gun-control case, the lower courts have expanded tthe militia requirement the Court laid down until it's really a bit absurd.

The 5th Circuit a few years back came down with a decision--accompanied by a lengthy opinion that supported the individual right to bear arms--that nonetheless upheld the regulation at bar as reasonable. Now, for the first time, a court has struck down a regulation as unreasonable. This means the Supreme Court has a circuit split on their hands that will need to be resolved.

My money says the individual right model triumphs.

Fair enough, too many steves.

As to the 9th and 10th Amendments, I think it was Robert Bork whocalled the 9th amendment "an ink blot." It's frustrating to see government overreaching and no mention made of the 9th Amendment, but the problem Bork references is a serious one-- how do you determine what exactly the amendment protects? And who gets to decide?

Doesn't mean they should be dead and buried, but it does mean that it's a pretty tough debate.

Slippery Pete,

Re: "Jim W - that is some powerful logic, boyo. You say the word "bear" makes no legal sense because people whose arms have been amputated couldn't bear them. Brilliant! What law school do you teach at? Heh."

I was responding to the first comment, in which jonp72 reported that the word "bear" was considered to be significant because it made a distinction between those arms people could hold and those arms they couldn't. I was pointing out the absurdity of this reasoning.

Whatever Matt Yglesisas or Julian Sanchez or anybody else thinks "make sense", the fact is that the "collective right" interpretation has been firmly established by the courts for nearly 70 years. It was decided by the Supreme Court in United States v. Miller in 1939 (!), and that decision has been followed ever since. In over 200 federal and state appellate decisions since Miller, Second Amendment challenges to gun control laws have been rejected every time, with one exception in 2001 (in a case that was not heard by the Supreme Court on grounds unrelated to the Second Amendment).

And now we have Parker v. District of Columbia, a radical departure from court precedents that have prevailed for the better part of a century. Considering all of their histrionics about "judicial activism", do you suppose that the conservatives will be railing against this decision? Because we just can't have that, can we, a federal appellate court tossing stare decisis out the window, crassly contradiciting long-established judicial principles?

Buckeye,

We can have it just fine if the precedent is wrong.

But then, I'm not a conservative, and I've never railed against "judicial activism."

And now we have Parker v. District of Columbia, a radical departure from court precedents that have prevailed for the better part of a century.

I can't complain too much about their willingness to throw aside vertical stare decisis; sometimes, you gotta do what you gotta do. Doing it over some nervous white guy who wishes he could go around the District strapped, however, seems unnecessary.

So the presumption is that "well-regulated militia" is intended to assist or guide the construction of the rest of the passage.

Did you read the Parker opinion? The court, citing Eugene Volokh's scholarship on the subject, found that there were many state Constitutional provisions in which there was a prefatory statement announcing the principle of good government prior to an operative section guaranteeing rights, as we see in the 2nd Amendment. Moreover, it was quite common for the prefatory statement of good government to be narrower than the operative section used to achieve it. See page 36 of the opinion.

a radical departure from court precedents that have prevailed for the better part of a century

This, of course, it utterly false. There were basically no precedents on the meaning of the Second Amendment. In fact, of the few precedents there are on the subject, the leading case (Miller) supports the individual rights position, not the collective rights position.

Did you read the Parker opinion? The court, citing Eugene Volokh's scholarship on the subject, found that there were many state Constitutional provisions in which there was a prefatory statement announcing the principle of good government prior to an operative section guaranteeing rights, as we see in the 2nd Amendment.

That's interesting, but doesn't have much to do with my rebuttal of too many steves's contention that the prefatory language is surplusage.

I don't have much of a dog in this fight. Guns are dangerous, but I generally favor the reading of the Constitution that favors the broadest swath of individually-held rights against the state.

In fact, of the few precedents there are on the subject, the leading case (Miller) supports the individual rights position, not the collective rights position.

Huh? Miller imposed the militia requirement that has governed ever since.

Imagine we interpreted free speech the way Matt interprets an individual right to bear arms. Gone would be bans on fraud, conspiracy to commit murder, and shouting "fire" in a crowded theater. If the First Amendment didn't let the government ban that kind of thing, it would indeed be pretty crazy.

Pretty much all Constitutional rights have been subjected to restrictions the courts deem reasonable. I don't think even the individual rights scholars think the Second Amendment requires an *unrestrictable* individual right to bear arms. If SCOTUS actually goes for the individual right view, it will be subject to the same sorts of restrictions.

I have no particular opinion on the individual rights/collective rights issue, because I haven't studied the issue carefully. But the collective rights view has the feel of an implausible rationalization.

That's interesting, but doesn't have much to do with my rebuttal of too many steves's contention that the prefatory language is surplusage.

Well, I don't think the prefatory phrase is "surplusage" either. However, since the prefatory phrase doesn't narrow the interpretation of the operative phrase, I'm not sure what point you are making either.

The whole point of stare decisis is that, once a constitutional question has been established by precedent, many times and over a lengthy period of time, then blurting out that "the precedent was wrong" is something you just don't get to do. You might not like the precedent; in fact, you might be an appellate judge who doesn't like it, thinking that you can muster a legal argument against it. That's tough. The doctrine is that you have to follow the precedent, unless new law or new reasoning have appeared in the meantime that warrant re-examining it. But I don't see any signs of that in Parker v. District of Columbia. The intention of the Second Amendment and the militia clause is a historical question, and the history hasn't changed.

However, since the prefatory phrase doesn't narrow the interpretation of the operative phrase...

But you see, Al, in the Miller line of cases, the prefatory language has, repeatedly, narrowed the operative phrase. You clearly think they were wrong to do so (and I could probably be convinced of that), but you would be a fool to deny that they did it.

Eugene Volokh's commentary on how simliar sorts of passages are construed in state constitutions should be regarded as very interesting and informative, but should not have controlling weight when the Supreme Court has to weigh it against more than 75 years of stare decisis regarding the exact passage in question.

How would the Second Amendment be written today?

You may want to look at the Delaware Bill of Rights, which was one of the models for the federal Bill of Rights. Delaware's 1776 Bill of Rights did not have a right to bear arms.

In the mid 80s, that omission was corrected by an amendment. Delaware's late 20th century right to bear arms reads: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."

In fact, of the few precedents there are on the subject, the leading case (Miller) supports the individual rights position, not the collective rights position.

That, of course, is utterly false. Referring to Congress' power to muster and organize militias as set forth in the Constitution, the Miller decision says:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

If I may say so again, this decision was handed down in 1939 and has been followed by the courts ever since.

I'm no lawyer, so I'm more familiar with the guy-in-a-bar interpretation of the Second Amendment than with the case law, but it does seem to me that there's an important matter related to gun rights that nobody ever seems to discuss.

Regardless of whether the Second Amendment should be interpreted as an absolute individual right or a narrowly circumscribed collective right, it is clearly the case that Americans have had the de facto right to keep a shotgun or rifle on their own property for self-defense and/or hunting since the time of the Constitution.

And there's little thing called the Ninth Amendment that was intended to uphold common law and prevent the federal government from trampling on unenumerated individual rights that were widely respected at the time of ratification.

So it would seem to me that no reading of the Second Amendment, no matter how narrowly construed to favor the public interest and limit gun ownership, could justify a federal law that prevents citizens with no criminal record from owning some sort of firearm for personal use. The government can limit the make and model of firearms, require licensing and registration, etc., but it can't "ban private gun ownership"... Or at least not without committing a hideous abuse of power that even I, a non-gun-owning peacenik, would strongly oppose.

"more than 75 years of stare decisis"

This is only "more than 75 years" in the sense that Hussein's Iraq and al Qaeda had "connections that go back over a decade." After all, somebody from Iraq had indeed met someone from al Qaeda more than ten years before. We're talking here about one case; the fact that it's a very old case does not the inexorable hand of stare decisis make. And stare decisis is hardly an inexorable command, especially when a prior Court took a right explicitly granted in the text of the Constitution and wrongly "interpreted" it into nothing. See Brown v. Board.

If Miller was correctly decided, then by all means it should be upheld. But if it was wrongly decided, then stare decisis is a very, very poor argument for upholding it.

Jim W -

I know that's the point you were making. But it's extremely silly. I don't know whether it's plausible or not, but it makes perfect legal sense to write a law or amendment that defines arms as things that can normally be borne on a person, even if a few unfortunates out there are missing limbs. It's extremely silly to argue that the fact that some people have lost their limbs means you can't make distinctions between wearable/portable arms and heavy arms.

If Miller was correctly decided, then by all means it should be upheld. But if it was wrongly decided, then stare decisis is a very, very poor argument for upholding it.

Well, there's vertical stare decisis (the lower courts always follow the latest controlling decisions of higher courts) and horizontal (courts hesitate to throw out old reasoning). Here, there's only one higher court case (Miller) that has spawned a LOT of decisions below. So the Court's own decisions don't provide a super-strong resistance to change, but the massive reuse of that case over the years would make them wary.

Well actually I think its both an individual and collective right if you look at the historical context. Militiamen were expected to supply their own weapons. So, you couldn't have a militia unless people could own guns. Where that leaves us now I don't know.

dj moonbat - SCOTUS has no obligation whatsoever to follow the lower courts, especially when all the lower courts are doing is following and construing a precedent set by SCOTUS. A decision of a lower body is the most minimal kind of persuasive authority unless you're looking at an interpreter with area-specific expertise such as an administrative agency or the Delaware Court of Chancery. (Not that SCOTUS is in the business of interpreting state corporate law, but a state high court might give strong weight to a prior opinion of DE Chancery in interpreting that state's own corporate law even though DE Chancery isn't even the highest court in Delaware).

To say otherwise is to get dangerously close to the point where you're arguing that Plessy v. Furgeson should have been upheld because it had been repeatedly followed by the lower courts. A theory of stare decisis should not give so much weight to precedent that it produces the result that Brown was wrongly decided.

Elliot Reed - why are you going about the Supreme Court following the lower courts? That has nothing to do with the Miller and Parker decisions. Miller was a Supreme Court decision, and Parker was decided by a lower court (the Court of Appeals in the DC circuit).

Yes, stare decisis is not the kind of rule that admits no exceptions, but dj moonbat was right on about the weight of "horizontal" stare decisis in this case. The fact that the Supreme Court's Miller decision has stood for so long, and has been followed by the lower courts so often -- over 200 times, with only two exceptions including Parker -- makes it about as strong a precedent as anybody could ask for. The significance of the militia clause in the Second Amendment is an intersting question that the courts might be expected to settle, and for the better part a century, it's been settled.

Just to comment on the posts above that talked about how the Second Amendment -- read as a collective, militia-enabling, right only -- only makes sense as applied to the Federal government, and gets confusing as applied to the States. The Second Amendment has never, to my knowledge, been "incorporated" through the Due Process Clause of the 14th Amendment. I suspect, for that very reason. Until and unless the amendment is incorporated, states remain free to impose any gun restrictions they like. (The Parker decision involved DC which, the court said, is ultimately subject to the control of the federal government.)

Also, a comment re: stare decisis. The DC Circuit in Parker claims that Miller did not, in fact, hold that the collective-rights interpretation was correct. You (and I) may disagree with that reading of Miller, but the fact is, Parker doesn't just say, "screw Miller, we're not following it." And the DC Circuit (again, according to Parker) had not previous addressed the issue. Yes, there's the precedent of the other circuits (and, as the Parker court points out, the state courts, many of which have rejected the collective-rights model), but stare decisis is at its weakest -- essentially nonexistent -- when you're talking about following the holdings of coordinate courts.

I don't like Parker one bit. But it's hard to see it as a violation of stare decisis, unless you think the court was being disingenuous in its reading of Miller (which, admittedly, is possible).

Buckeye - dj moonbat seemed to be indicating that the repeated reuse of Miller by the lower courts is itself a reason to uphold Miller. And you're making the same argument, which amounts to saying that SCOTUS has to follow the lower courts.

I agree that horizontal stare decisis is important, but as far as horizontal stare decisis goes we're still only talking about one case; it's not as though SCOTUS has repeatedly reconsidered and upheld Miller. Upward vertical stare decisis (an obligation for higher courts not to overturn decisions of lower courts) barely even exists, if it exists at all. Since Miller is controlling precedent, it would be a kind of judicial malpractice for the lower courts to fail to follow it.

If Miller was wrongly decided, it completely eviscerated a right explicitly granted in the text of the Constitution. Stare decisis is a pretty weak reason to uphold an error of that magnitude, especially when we're only talking about one SCOTUS case. Plessy was also a pretty old case (only 58 years, but that can't possibly make any difference), had repeatedly been followed by the lower courts, and, unlike Miller, had been repeatedly upheld by SCOTUS. So the case for upholding Plessy under a theory of stare decisis was actually stronger than the case for upholding Miller on the same theory is today.

The case for upholding Miller, if it should be upheld, is that it was rightly decided on the merits. If stare decisis is a good enough reason to uphold it even if it was wrongly decided then you're articulating a view of stare decisis strong enough to make Brown wrongly decided.

Elliot -- for some reason you keep thinking that I'm saying that SCOTUS should or should not do something, but I assure you that I'm not. I'm saying that the Court of Appeals should not have decided Parker the way that they did -- I wouldn't be saying quite the same thing if it had been the Supremes. As for the example of Plessy v. Ferguson that you've been bringing up, Brown v. Board of Education was SCOTUS overturning a prior decision of SCOTUS, which of course they can do -- but even when they do that, they are quite reticent about it.

I think I was the one who brought up stare decisis in this thread, and my point was, in part, to point to conservative hypocrisy about the judicial system. They love to be outraged when a court goes against a principle that's been in place for a long time -- except when they like the outcome of the change.

But I also think that it's hardly insignificant that the collective-rights interpretation of Miller has prevailed in so many courts for so long. Glenn (would that be Mr. Greenwald?) has addressed the matter very well, I think; if the DC Circuit really thought that Miller supports the individual-rights view, then they're reading something in there that neither I nor numerous federal and state courts over the past 65 years have been able to divine.

Does anyone know if there are plans to appeal Parker? This really looks like the kind of thing that the Supremes might be asked to settle, and given the current makeup of the court, they might indeed render a decision contradicting Miller. The conservatives and evidently a lot of Democrats would be very happy about that, but I think it would be a disaster.

"whose arms have been amputated would not be allowed to own handguns,"

Why would someone without arms want or need a gun?

Does anyone know if there are plans to appeal Parker? This really looks like the kind of thing that the Supremes might be asked to settle, and given the current makeup of the court, they might indeed render a decision contradicting Miller.

They kind of HAVE TO, now. There's a circuit split between D.C. and the 5th, on the one hand, and all the rest. When there's a circuit split on a provision of the Bill o' Rights, it's impossible for the Supreme Court to refuse cert.

"Why would someone without arms want or need a gun?"

Revenge, pure and simple.

If Miller was wrongly decided, it completely eviscerated a right explicitly granted in the text of the Constitution. Stare decisis is a pretty weak reason to uphold an error of that magnitude, especially when we're only talking about one SCOTUS case.

Well, as Buckeye Hamburger is pointing out, it's NOT the Supreme Court that bucked stare decisis here; it's the D.C. Circuit (and sort of the 5th). They were NOT at liberty to do so.

Now, when the Supreme Court rehears this--and as I said, I don't think they CAN'T--they should consider the long history of fealty to existing doctrine. They won't--and shouldn't--feel constrained by that history, but I would say that the presumption going in should be that the D.C. Circuit is wrong, NOT that the Miller court was wrong.

"There can be reasonable restrictions on such a right, which are generally viewed by courts under certain tests (e.g., strict scrutiny)."

Um, Al, strict scrutiny (which would not apply to the Second Amendment, given its call for a "well regulated" militia) does NOT permit "reasonable" restrictions. It permits almost NO restrictions; indeed, strict scrutiny has often been called "fatal in fact".

I do think that the Second Amendment (1) protects an individual right, and (2) does not prohibit reasonable regulations of gun ownership, because it recognizes the states' powers to regulate the militia. But strict scrutiny has no place in Second Amendment interpretation.

dj moonbat: I think Buckeye's point on appeal was that maybe it's better to live with the Parker decision rather than petition for cert and tee this issue up for this Supreme Court, given the (to say the least) uncertainty as to which way it'll go. I'd be willing to bet that the pro-gun-control groups are thinking about that pretty damn hard. DC may not be able to live with the decision as it is, though, and figure they're not going to take one for the team.

My guess, though, is that they'll ask for the Circuit to hear it en banc. With the current makeup, it's quite possible you'd get the same answer ... but I don't see where there's anything to lose.

I'd be willing to bet that the pro-gun-control groups are thinking about that pretty damn hard. DC may not be able to live with the decision as it is, though, and figure they're not going to take one for the team.

I don't think the pro-gun control groups would have standing to petition for the writ. The District has nothing to gain from taking the loss lying down.

Wow. Silberman's opinion in Parker is just staggering in its intellectual dishonesty. Wow.

Glenn writes "The DC Circuit in Parker claims that Miller did not, in fact, hold that the collective-rights interpretation was correct. You (and I) may disagree with that reading of Miller, but the fact is, Parker doesn't just say, 'screw Miller, we're not following it.'"

Yes, and actually, I think you're even being a little unfair in your paraphrase of their statement.

The Miller text is short: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html . Of course, law is not just common English and common sense, but it's pretty conspicuous that the decision avoids the obvious no-individual-right verdict that "no governmental act had chosen to recognize this low-life as a militiaman, end of story." The decision does implicitly hold that the first clause limits the second, but it also explicitly cites various very-expansive unconditional contemporary definitions of militia, expansive enough that it's not clear how to narrow it down to some subset of the population of VIPs and ex-cops. (And expansive enough that didn't need to wish away the Dred Scot decision arguing in passing that blacks couldn't be freed because then omigod they'd necessarily have guns.)

So unless you want to argue that lawyerly language is a completely alien tongue, writing "the DC Circuit in Parker claims that Miller did not, in fact, hold that the collective-rights interpretation was correct" seems a bit unfair. Why write "claims?" It seems like writing "Joe claims the photo is on his website," when in fact the photo *is* there, on his website, just a mouse-click away.

To put it another way, translate the Sanchez challenge to "what exactly, post-Miller, is the second amendment supposed to mean?" It's relatively easy to give an answer without breaking off a dozen times to cringe and squirm in intellectual embarrassment, or without falling back to "surely we're not to be bound by the wishes of a bunch of slaveowners long dead." Basically people can have weapons, but the laws can carve out exceptions for things which scream of non-militia purposes, notably things that seem primarily suitable for crime. That answer probably makes you squirm in *political* embarrassment, because today even more than in the 1930s lots of people prefer the idea of the state having a monopoly on armed force, and of course we also have nuclear weapons. But the translated question has lost most of its sting as an ivory-tower intellectual's gotcha: reconciling the decision with something that 18th century politicians would consider important in the Bill of Rights doesn't require world-class doublethink.

Well, it's kind of beside the point whether Miller characterized the right as individual or collective. Even if it protects the individual, according to Miller, the protection of that right must be evaluated with reference to the goal of militia service. The Parker decision completely eviscerates that requirement, pretending that the important thing is individual vs. collective, when the real issue is "militia or not"?

Re Yglesias

If Mr. Yglesias desires to own a firearm so badly, I suggest that he move to Virginia where he will have no trouble purchasing same. If he were to move to the 8th Congressional District therein, he would even have an Israel bashing Congressman to write letters to.

So unless you want to argue that lawyerly language is a completely alien tongue, writing "the DC Circuit in Parker claims that Miller did not, in fact, hold that the collective-rights interpretation was correct" seems a bit unfair. Why write "claims?" It seems like writing "Joe claims the photo is on his website," when in fact the photo *is* there, on his website, just a mouse-click away.

I write "claims," first, (to quote Sam Ervin) "Because I can understand the English language. It's my mother tongue." "Claims" seems like a perfectly acceptable, and nonjudgmental, word to me.

But to take your point more directly and less snarkily, what do you make of the fact that, as I understand, close to every other court of appeal (except the 5th Circuit) read Miller opposite of the way you do (and Parker does)? Mass delusion? A vast anti-gun conspiracy? Or do you think maybe, just maybe, it indicates that Miller's not the pellucidly clear statement of individual rights that you claim -- yes, claim -- it to be?

Is anyone else getting bored of the continual mentions of 'shouting Fire in a crowded theatre'? It's almost as bad a cliche as the supposed 'chilling effect' of campaign finance regulations, or the 'ticking bomb scenario' of torture mavens. Or worse, since it refers to a case which is no longer a valid precedent for First Amendment interpretation and which in fact upheld a draconian restriction on freedom of political speech.

It seems to me that many things that many people say every day, mainly concerning Iran in the last few months, have been much much more dangerous and likely to lead to injury and death than maliciously shouting 'Fire' in a theatre, crowded or not - or indeed setting off a fire alarm, which is really quite a common prank. If shouting 'Fire' is bad enough to be made a criminal offence, why do we allow numerous people to advocate wars of aggression in the national media without the least damage to their liberty or personal circumstances?

The original use of the 'crowded theatre' argument was made by Wendell Holmes, in arguing against the right of someone to speak against the draft during the First World War. When, of course, theatres really were dangerous places, generally being badly constructed and impossible to escape from in any orderly fashion. His test was:

"...whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

That's Holmes telling us that the Government can imprison people who speak against the draft. The unspoken assumption is that the danger that the opinion of some members of the public might turn against the draft was great enough that Congress had the right to intervene. Does anyone want to follow such an example of First Amendment jurisprudence today? The case in which Holmes ruled was, in fact, overturned and replaced by a test of "imminent lawless action" (Brandenburg v. Ohio).

If a theatre or any other public building has proper fire precautions, there should anyway be no 'clear and present danger' from evacuation resulting from either a real or false fire alarm. And an evacuation does not constitute "lawless action" - therefore shouting 'Fire' cannot now be criminalized!

Could civil damages be sought against a malicious false alarm-raiser? Why not, since it is an intentionally false statement - which meets the usual tests of libel, except that it is a malicious statement about a theatre, not a person. Why should the law publish false and malicious speech in the case of libel, while leaving it free to flow if it doesn't have a direct personal application?

Glenn: While you, um, claim that I claim Miller is a pellucidly clear statement of individual rights, actually I didn't and don't. I could claim, quite sincerely, that Miller did not support the interpretation that one's right to keep and bear arms is conditional on being white. That wouldn't make it fair to put in my mouth the claim that Miller is a pellucidly clear statement of Second Amendment rights for blacks (not an obvious question in the depths of Jim Crow).

I claim that the most reasonable reading of the second amendment is as an individual right. (It seems to be remarkably hard to find any text from before the Civil War which treats it otherwise, and people who harp on modern connotations of words don't impress me.) And I claim that the text of the Miller ruling doesn't contradict that. (The only sense in which it contradicts it is to implicitly accept the limit of the right to a militia. What comfort to controllers that text giveth, the text implicitly accepting Miller's militia status and explicitly citing historically expansive definitions of militia taketh away.)

Also, color me unimpressed at your argument from the authority of years of circuit court decisions. As per comments upstream, it's uncontroversial these days to judge that some long-upheld decisions like the Jim Crow stuff were judicial abominations --- not just evil policy, but dishonest reading of reasonably clear text written when political winds blew differently.

We can probably agree to disagree about the level of dubiousness implicit in "claims." But if you ever see someone write "the ACLU claims that the First Amendment prohibits Congress from making any law abridging freedom of speech," remember me.:-)

DJ Moonbat writes "Wow. Silberman's opinion in Parker is just staggering in its intellectual dishonesty. Wow." and "Well, it's kind of beside the point whether Miller characterized the right as individual or collective."

Staggering in its length, for sure; after downloading the decision I am *so* proud that I managed to skim around around in a few places. Ah, word processing and staff!

It does seem dishonest or at least horribly sloppy to say, as Silberman does on p. 13, "we take the District's position to be that the Second Amendment is a dead letter." As I understand it, and as Silberman himself describes in the following text, the District's position is instead that the Amendment protects no individual right: except to the extent that a US State or the US itself chooses to militia-ize you, it doesn't apply. That doesn't mean it's a dead letter, though: the founding fathers in their wisdom wanted to keep the right of the state governments from being infringed by the federal government, so a Federal law limiting a state militia would be unconstitutional! I think that's goofily ahistorical and near-impossible to reconcile with how "the right of the people" snuck into the text, but it doesn't make the law a dead letter.

I notice that the Henderson dissent gets off a good one: "Today the majority adds another fifty-plus pages to the pile." But color me unimpressed, for the second time in a short period, at the tradition of DC jurists riffing on the appearance of the term "state" ("well regulated militia, being necessary to the security of a free state, ...") to conclude "the District [of Columbia] is not a state within the meaning of the Second Amendment and therefore the Second Amendment's reach does not extend to it. [p. 2]" Didn't some cynic earlier make a remark about "torture" in Exhibit B? And don't I remember something about torture prohibitions' reach not extending to Guantanamo for reasons less than apparent from an ordinary reading of the treaty and legislative text?

But color me unimpressed, for the second time in a short period, at the tradition of DC jurists riffing on the appearance of the term "state" ("well regulated militia, being necessary to the security of a free state, ...") to conclude "the District [of Columbia] is not a state within the meaning of the Second Amendment and therefore the Second Amendment's reach does not extend to it. [p. 2]"

But the District is NOT a state, and has no militia. It should have whatever gun-control laws Congress allows the local government to pass.

dj moonbat writes "But the District is NOT a state, and has no militia. It should have whatever gun-control laws Congress allows the local government to pass."

Well, "state" in the Constitution is ambiguous. Separate nation? Or one of the states of the union? Consider Article 3, Section 2: "controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

I find the whole militia-clause-limits-right-clause thing iffy in the first place (I find I disagree with FDR's Supreme Court on the Bill of Rights on a pretty regular basis...) but if I grant for the sake of argument that it's meant to limit the right, then the construction "free state" doesn't seem like a good fit to state-as-one-of-the-states-of-the-union. Imagine a document where the ambiguity is resolved: perhaps a Canadian revolutionary document. Saying "goosebumps being important to a free nation, snow must always fall" seems natural. "Goosebumps being important to a free province..." as opposed to unfree provinces and/or unfree administrative districts carved out of the free provinces?

But granting *that* for the sake of argument, I get in effect "a well-regulated militia being necessary for the security of any one of the free states of the union, but not for the District of Columbia, ..." You are of course entitled to believe that that's what that clause meant, that such a lead-in clause was plausibly intended to limit "the right of the people" (instead of just writing "the right of the states to organize militias" or some such thing), and that no controversy over such a policy (not only before the standing army, but before most professional police forces) arose at the time (or, I suppose, that the controversy was simply lost to history). I myself believe that people will boldly perform embarrassing intellectual acts in public in the hope of avoiding political embarrassment.

Well, "state" in the Constitution is ambiguous...

Well, maybe. But the status of the District is not:

The Congress shall have power...To exercise exclusive legislation in all cases whatsoever, over such District . . . as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States

Not a state.

all you lawyers ALWAYS much it up. the 2nd amendment says "bear arms" and does include the militia. JUST UNSCRAMBLE the sentence. Militias (state) can carry (bear) arms.

If the founders wanted ownership don't you think they would have written "right to OWN arms or POSSESS arms..."????

Yep, here's how you would write it today:

"The right of the government to take anything you have is absolute."

That's why folks like you will never be allowed to take power.

I think the Second has to be looked at in historical context. The right to self-defence by arms was a basic part of English Common Law, and thus was pre-existing law in the Colonies at the time the Const. was written. All the Second did was to reaffirm that right.

But my real question: Why would anyone want to take my guns away from me? I have no problem with registering them, if law requires.

Moonbat wrotes "But the status of the District is not [ambiguous]: 'The Congress shall have power...To exercise exclusive legislation in all cases whatsoever, over such District . . . as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.' Not a state."

Well, yes, DC is unambiguously not one of those divisions of the US that we call states. The status of the United States is not ambiguous either: it is a state, in the same sense as the "foreign states" referred to in Article 3, Section 2. And DC is unambiguously part of that state.

The ambiguity is whether the Amendment's text is to be read as "necessary to a free nation [to wit, the United States]" or "necessary to those subdivisions of the nation that we call states [with 'free' attached in there somehow, frankly dunno how], but to no other subdivisions." From the fact that DC is not one of those subdivisions of the nation that we call states it does not follow that the second interpretation holds.

It's simple, Solons: Local, state and federal authorities go after the Second Amendment so they can take away all the others.

I like the second amendment just as it is, and strongly believe it pertains to individual rights. If you disagree or believe the founding fathers were wrong, or believe the constitution should change with the times, then there is a completely clear method provided for amending the constitution, and you are welcome to avail yourself of it.

Why you libs really suprise me, the right to keep and bear arms is actualy in the Bill of Rights, unlike the "right" to an abortion, or maybe one of you brilliant lefties can quote which Chapter, Clause, or Amendment actually supports said abortion right?
One other small point. the Bill of Rights is about INDIVIDUAL rights. Why would they go and put a collective (or state) right in there? And in spite of all your caterwauling, remember that the 2nd Amendment protects all the others, including your right to whine like sissies.

"the word is "arms" so whatever our right to arms is, that's a right to arms not to puny guns."

Err... then why is the military term "sidearm"?

"the 2nd amendment says "bear arms" and does include the militia. JUST UNSCRAMBLE the sentence. Militias (state) can carry (bear) arms"

Oh- so the other 9 amendments of the bill of rights just happen to LIMIT the power of the federal government, but the 2nd one for some completely inexplicable reason felt it necessary to explain to everyone that- guess what, the government is allowed to have weapons? Thats asinine. Its not like the founders were trying to fill space at the end, its NUMBER 2 for gods sake.

What did the Founders mean by a "Well-Regulated Militia"? The militia was every male citizen (nowadays it would include women) of military age (nowadays this would not cut off at 45, as the original Militia Act specified), capable of bearing arms for the defense of the state. It did not mean only those enrolled in a formal militia; those were considered "Select" militias, and were not the point of the Amendment. The currently applicable federal Militia definition bears this out. Basically, just about everyone over the age of 18 would be in the militia, under current Federal law, except for those in the active military or whose right to bear arms has been revoked, such as felons.
"Well-Regulated" meant capable of effective use; a well-regulated double rifle put both of its bullets in the same spot at a specified distance away, and a well-regulated clock kept accurate time. If the members of the militia were not able to practice with arms because the government had prohibited them from having arms (a neccessary step towards "bearing" them), then the militia would not be able to be well-regulated.
To carry the "Collective" interpretation to its extreme, the actions of the U.S. government in the early 1860's were unconstitutional, because, if the 2nd Amendment only protected the rights of states to have militias to protect them from the Government, then the Government had no power to use force to make the states lay down their arms. (And although I had ancestors who fought for the Confederacy in that war, I do not think the wrong side won.)
For those who think that, if the Founders would have not included rapid-fire firearms in the Amendment if they had known about them, the Lorenzoni repeating flintlock system was over a century old at the time the Constitution was written, and faster reloading was the goal of every gunsmith; it was obviously only a matter of time until someone succeeded. And what, after all, was a privateer (legal at the time of the Founders), but a privately-owned, mobile rapid-fire artillary platform?

Start your grassroots movements to amend the 2nd amendment so it reads more clearly.

Nonsense like: But then again, neither does the "individual right" reading which would leave the right of individuals to buy anti-tank missiles and nuclear bombs "shall not be infringed." indicates a lack of seriousness in one's thinking.

It's not healthy being so afraid of something, you know.

berger - look up the definition of "militia" and you will see why you are wrong.

It's funny how so many people that can read plain text ("...the right to bear arms...") and find so many arguments for why it doesn't actually mean what it says. However, these same very people, almost always, have no problem creating words meaning, not from the actual text, but from the "pnumbra of rights".

Remember when you are done with trying to kill the 2nd Amendment you can start on the first with Hate Speech laws.

My God, people say liberals hate this country and I say no, they just do not trust people as a whole.

But then I come here and read this ridiculus crap about how those people 220 years ago did not know what they were talking about and how things needs to be changed. Or better yet thrown out.

Here in America people live better than the rest of the world, everyday thousands of people risk life and limb to come here and join the land of the free. Why, because that document you all poo poo on, that was written 220 years ago is the best damn Constitution the world has ever known or will ever know. None of the people writing and commenting on this blog, me included, could hold the jock strap of the framers and writers of the Constitution. That is not opinion, that is fact. So please all you want to be re-writers, move to Europe with their Constituion mess. Maybe you can point them in the right direction since the US constitution is so poorly written.

I will have to use the words of Representative Obey, "Idiot Liberals."

Anybody who has actually read the Miller decision, rather than just one of the glosses on it put out by the gun control movement, will have little trouble understanding it.

1. It's an individual right.

2. It's a right to keep and bear arms suitable for militia purposes.

3. Is this sawn off shotgun suitable for militia purposes? Nobody has provided us with any evidence that it is. (Of course nobody has, Miller was being tried in abstentia, unrepresented, and the government didn't want to prove his case for him.) Here, lower court: Take the case back and figure out whether sawn off shotguns are useful for a militia.

4. Oops, Miller is missing, so the lower court never has occasion to notice that sawn off shotguns were used in WWI trench warfare. .Gov goes on enforcing the law.

After which the lower courts proceded to use Miller as the starting point for a game of "Telephone", eventually reaching a conclusion which bore no resemblence to what the Court held in Miller. While the Court refused to take all challenges, presumably because they weren't unhappy to see the 2nd amendment die the death of a thousand cuts, so long as they didn't have to get their own hands dirty by taking part in it.

Which brings us to Parker, which doesn't violate the Miller precident, because handguns ARE militia weapons, routinely issued to soldiers. And the Court can't avoid getting it's hands dirty, if it doesn't want the 2nd amendment being upheld in it's own backyard, so they'll almost certainly take the case.

Be interesting to see if they've got the guts to rule that the 2nd amendment doesn't mean what it says. Be even more interesting to see what the next election looks like after that, when the NRA has fourty million members, instead of four million.

A question for the commenters here (and I applaud you all for the high level of discussion):

I have always read the Bill of Rights as limitations on the power of the Federal Government. Is it fair to write that the 2nd Amendment is a limitation on the Federal Government, and not on the state governments that have ratified it? For example, could Massuchusetts could ban all firearms without violating the original intent of The Constitution's writers? I find it difficult to believe, based on the history of The Constitution's writing, that The Founders intended it to be a restraint on the actions of the states.

Yancey Ward is, of course, correct; this is well established. That is the main problem of destroying federalism; as it is, if you don't like the laws in a state, you can always move to one where the laws are more to your liking, but if the Government takes over all aspects of the law, as many in D.C. would have it, where can you go?

Anybody who has actually read the Miller decision, rather than just one of the glosses on it put out by the gun control movement, will have little trouble understanding it.

1. It's an individual right.

2. It's a right to keep and bear arms suitable for militia purposes.

Miller does reach its conclusion by finding (wrongly, I'd argue--after all, in some circumstances the Marines use them) that a sawed-off shotgun is not fit more militia service. But the Parker decision is wrong to say that this method--evaluating a given firearm's fitness for militia use--is the only proper determination of relevance to militia usage. The militia requirement has been used in numerous other fashions, and the Supreme Court has never seen fit to review any of these other approaches, because they were in line with the doctrine laid down in Miller.

Big question here -- what evidence is there the Second Amendment was a compromise? I've read (and written: http://www.spectator.org/dsp_article.asp?art_id=11134) more about the Amendment's interpretation than about the minute details of its past, but it's based solidly in British law. I'm aware of no fights about it during the drafting process.

I take that back; it appears its inclusion followed a federalism/anti-federalism debate and the whole "standing army" thing":

http://www.answers.com/topic/amendment-ii-to-the-u-s-constitution

It is interesting reading the history of the 14th Amendment. As I understand it, the 14th Amendment has been used to limit the individual states' powers in regards to the other amendments of The Constitution. For example, the State of Florida may not infringe on a person's right to free speech because of the 1st Amendment.

However, such an incorporation of the 2nd Amendment has not been explicitly stated by SCOTUS. Why not? It would seem to me that, if such incorporation is truly the meaning and intent of the 14th Amendment, then the 2nd Amendment applies to all jurisdictions within the borders of the United States, and it is not open to interpretation that some Amendments are incorporated and some are not based on the preferences of the members of any given Court.

"by finding (wrongly, I'd argue--after all, in some circumstances the Marines use them) that a sawed-off shotgun is not fit more militia service."

On the contrary. As I related above, they found nothing of the sort. The simply stated that nobody had provided them with evidence that it was so fit, and remanded the case to the lower court to make that factual determination.

The reason nobody provided them with the evidence was that Miller vanished as soon as the lower court freed him, and the case was held before the Supreme court with only the government's case being presented. 70 years of 2nd amendment jurisprudence stands like an inverted pyramid on a trial in abstentia where only one side was argued.

Hey, Ann Althouse has linked to this through Instapundit. She's trying to make fun of Matt for saying the Constitution is "hundreds and hundreds" of years old.

It was ratified in 1789. The Bill of Rights was ratified in 1791, both over 200 years ago. I believe two groups of a hundred each makes "hundreds and hundreds".

I would have pointed this out on that site, but Instapundit doesn't allow comments. Now why would be?

Ambiguous? Fine. How's this:

"The private possession of firearms in sufficient numbers and capacity to protect life and property, and the right of citizens to carry unconcealed private firearms at all times and in all places, shall not be infringed, licensed, taxed or otherwise regulated."

Sorry, fishbrake, "hundreds and hundreds" is pretty dumb.

yet accurate!

"Hundreds and hundreds" has the connatation of being significantly more than two centuries. However, a well functioning web-pundit, being necessary to the maintenance of a web-site, the right of Yglesias to keep and bear his own connatations shall not be infringed.

On Miller and 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.

Second Amendment to the U.S. Constitution

To whom should this right apply? Is it an individual right, as is argued by the NRA and other pro-gun interest groups, or is it a collective right, as argued by gun control advocates. The only case to come before the Supreme Court that has dealt explicitly with the Second Amendment, United States v. Miller, 307 U.S. 174 (1939) held that,

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less that eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymett v. State, 2 Humphreys (Tenn.) 154, 158.” (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html)

Having read this holding, one might reasonably ask why the Court, “cannot say that the Second Amendment guarantees the right to keep and bear such an instrument (a shotgun with a barrel less that 18 inches long).” On could also be forgiven for questioning the even more cryptic statement that, “it is not within judicial notice that this weapon is any part of the ordinary military, or that its use could contribute to the common defense.” Why is the Court referencing judicial notice? Shouldn’t evidence one way or the other be part of the trial record, briefs presented, or oral arguments made before the Court?
The answer to both of these questions can be found in the background of Miller case.

“Jack Miller and Frank Layton were suspected bank robbers and moonshiners who were arrested for transporting an unlicensed sawed-off shotgun (defined as "having a barrel less than eighteen inches in length") across state lines while engaged in interstate commerce, in violation of the National Firearms Act of 1934. At trial, U.S. District Court Judge Heartsill Ragon found that the NFA was intended to restrict the individual ownership and possession of arms, in conflict with the Second Amendment to the United States Constitution. The prosecution appealed to the Supreme Court.

On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:
1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
4. The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court. (For more background information see” http://en.wikipedia.org/wiki/United_States_v._Miller)

That’s right, the defendants did not appear before the Court! This explains both why the Court references judicial notice and why it uses such strained phrasing in the statement of the holding (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less that eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”). The Court was left to decide the case based only on the governments arguments.
Lets focus of the Government’s arguments:

1. Number one is a defense of the jurisdictional hook for the NFA so they won’t loose on the procedural grounds that the Department of the Treasury has no place regulating the possession of firearms.
2. Number two is also focused on jurisdictional issues, but this time a fact based one that justifies the Federal Governments involvement in the case.
3. Number three is the most focused on the Second Amendment and will be dealt with bellow
4. Number 4 is fact based and aims to prove that the weapon the defendants possessed does not fall within the construction of the Second Amendment that they are arguing for in number 3.

It is clear that #3 is the only argument that is aimed at interpreting the Second Amendment and is therefore the only one that is relevant to today’s Second Amendment debate. Let’s look at Number 3 again:

The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

The Government’s argument wasn’t the weapon are only protected if they are intended to be used in an organized militia, but instead that weapons are only protected if they are appropriate for use in an organized militia. This is significant both for the Miller case of yesterday and the Second Amendment debate of today. The Government was arguing that Frank Miller’s sawed off shotgun was not appropriate for use in an organized militia and was never used in such a militia organization. Had Miller been able to show that shotguns of the type he possessed were used in the military or a militia organization he could have overcome the government’s argument. Because the defendants did not appear before the Court, it was left to say,

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less that eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

The Court didn’t say that the Second Amendment does not guarantee the right to keep and bear such and instrument; it said that, “at this time . . . we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The Court didn’t answer the question many ask of the Second Amendments meaning; instead, it essentially said that the question is still open.

Next: From Miller to Parker

Personally, I'm always amused by arguments that assume the goverment grants rights to its citizens, whatever they are, when governments in reality can only take rights and grant privileges. Lest we forget, the US Constitution is a document that generally spells out the limits on government, not the limits on citizens.

As elsewhere noted, there are procedures spelled out rather clearly in the US Constitution to amend it, should that be necessary. There is a high bar established to ensure that any such amendments are sufficiently agreed upon by the populace and its elected representatives before amending such a core set of principles of government. Anything less seems to suggest that the tyranny of the majority should rule, or worse, the tyranny of a few or the tyranny of a fad.

The problem with "hundreds and hundreds" is in those "s"es. "Hundreds" has to be at least 200 to justify the plural, so when you add "hundreds and hundreds" the smallest number you can get is four hundred. LOL!

"the best damn Constitution the world has ever known or will ever know. None of the people writing and commenting on this blog, me included, could hold the jock strap of the framers and writers of the Constitution. That is not opinion, that is fact."

Perhaps the joke's on me for responding earnestly to this, but even if someone is pulling my leg, there might be other people who seriously do need reminding...

The Second Amendment itself contains one of the most spectacularly failed bits of prediction in a document of world-class political significance: "a well regulated militia, being necessary to the security of a free state." That has not been treated no more kindly by history than Marxist ideas of the working class getting clobbered by economic trends of the time, or the various when-is-the-big-J-coming-back and scientific answers gleaned from the Bible by intensive study over the past two millennia. Even if you normally like to follow documents with blind reverence, surely an internal gotcha like that should give you pause!

(I do think that the Consitution in general has worked well enough that we should certainly take it seriously and learn from it, and that the Second Amendment and guns in the hands of ordinary folk work far better than the reality-based community usually deign to realize. I thought that sorta abstractly before I lived through the transition to unconditional concealed carry in Texas, and I think that redoubled now. And after a century of out-of-control governments killing in excess of 50M of their subjects, I think the left is even sillier to punt limited government and rule of law in the name of gun crime than the right is to punt them in the name of terrorism. (You can at least imagine terrorists achieving a world-class death toll with nukes.) A death rate of 50M out of 5 billion, even over 100 years, is a lot: we should be wary of overreacting to smaller risks in a way which might increase that bigger risk by any proportion.)

Several people have mentioned nuclear weapons. This is supposed to be a government with consent of the governed. How does the state gain the right to possess nuclear weapons when no individual has such a right and therefore cannot delegate it to government? Seems clear that nuclear weapons can't even be used legitimately in self-defense since it is impossible to limit the effects to an aggressor. Not a lawyer but I do know that self defense is fairly tightly circumscribed. So, how does a state gain a power or right that no individual making up the state possesed? Curious.

_"Personally, I'm always amused by arguments that assume the goverment grants rights to its citizens, whatever they are, when governments in reality can only take rights and grant privileges. Lest we forget, the US Constitution is a document that generally spells out the limits on government, not the limits on citizens."_

Errr....

"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"

The entire American system is premised on the self evident truth that government _does not_ grant rights, we are born with them. Government can either protect or trample on those rights, nothing more. This is particularly important regarding the Bill of Rights- neither Congress nor the Courts can alter the fundamental rights, they merely interpret them as best we humans can and the first 10 were the most important they came up with. We should muck with the 2nd Right at our peril.

Yes, God grants us the right to carry revolvers. He just forgot to put it in the 10 Commandments. That's what TJ was talking about.

Or maybe what he meant was that God grants us the big rights and it's up to us, through our government, to figure out what little rights we need to make sure we keep the big rights.

If you look at what he said, it sure looks like the second, but some people here find that point of view amusing.

First of all, i'm not sure that 218 years is justifiably described as "hundreds and hundreds", where does Yglesias get that idea? Secondly, Jim W wrote, "people seem to think that if the Constitution gives people a right to own guns, then that means the right to own guns is a good thing." No Jim, you have that backwards, owning guns is a good thing, that's why it's in the constitution.

"Or maybe what he meant was that God grants us the big rights and it's up to us, through our government, to figure out what little rights we need to make sure we keep the big rights."

I actually think this is about right. The problem is some people have decided that what the founders clearly intended (if you study the context and commonlaw they build upon) just suddenly isnt all that clear, and in fact maybe it means something else entirely, and furthermore lets get an unelected court to agree with us and make it the law of the land.

Anybody who thinks the Founders were wrong about an armed society should just flat out have the courage to stand up and say so, and fight for an amendment to rectify it. Maybe they were right then and are wrong now. Thats at least intellectually defensible and coherant thinking. Doomed to failure politically, but in a republic you sometimes have to live with that. Instead of hornswaggling the SCOTUS into giving you your way.

Late to this, but my take on the wording is that its a deliberately ambiguous compromise between states that had bottom-up regulation for their militia (such as Virginia), and those that had top-down regulation (such as New York).

If they'd wanted an unambiguous individual right, they could have just copied the language of a state constitution: there were a number of variations to draw upon. If they'd wanted an unambiguous collective right, likewise. The fact that it's the least easily-parsed of the ten amendments should be significant.

As such, the courts have been dealing with a designed-by-committee fudge ever since.

The founding fathers intent was to limit the power of the government (all of them, state and central)

They also had the wisdom to trust the people

Most of the anti-gun people really just do not like the idea of a beaten and horrifically overtaxed populace finally giving up civility and throwing them out forcibly.

ignorance is bliss...if you really want to know what the right to bear arms means, ask anyone who was alive in Hungary in 1956, In Czechislovakia (sp?) in 1968, or Poland in the early 1980's when Gen. Jerozulski supressed the Solidarity movement..or the French Maquis during WWII...ask them...then look in the mirror and ask yourself...what is worth fighting for...

Rich Vail,
Pikesville, MD USA

What we have clearly evidenced before us is the ultimate distallation of years of government schooling; a complete ignorance of history and an inabilty to think critically and articulate one's position.

The 2nd amendment gives INDIVIDUALS the right to own and carry such arms as are availible. Remember kids, when it was written it was entirely possible for anyone to own the EXACT same weapons as the government. This was done, if you will bother to read the rest of the constitution, so that we could throw out and replace the government AT THE WILL OF THE GOVERNED!

Do you truly think that the founding fathers did not foresee technological improvements in firearms? I do not posit that they saw nuclear weapons nor M-16s, but surely they did not think that single shot rifles would be the norm ad infinitum.

The chutzpah to hold that someone who hasn't been shaving more than 2 years has a clearer vision of original intent than the supreme court is somewhat staggering. Learn to think then speak, it works better that way!

Hundreds and hundreds of years huh? Are you sure? It might be thousands and thousands.

WILL EVERYONE PLEASE WAKE UP! WHAT WE THE PEOPLE NEED AND HAVE A CONSTITUTIONAL RIGHT TO IS AN ARTICLE V CONVENTION; DON'T KNOW WHAT THAT IS? OR EVEN IF YOU DO, GO TO WWW.FOAVC.ORG AND LEARN A LOT MORE, AND BECOME A MEMBER OF THE NEW NATIONAL GROUP FORMED TO GET WHAT CONGRESS HAS DENIED THE PUBLIC FOR OVER 200 YEARS.

dj moonbat,

If you think of the 2d Amendment as pertaining to the Federal Government's (lack of a) right to disarm state militias, it makes perfect sense.

Except for the part about the amendment being about the FedGov's lack of a right to disarm the people, you're quite right. It's all well and good to complain about "vague wording" in the 2nd, but please--how hard would it have been to have written, "A well regulated militia, being necessary to the security of a free state, the right of the state militias to keep and bear arms, shall not be infringed"?

And your reading (if you can call it "reading") of Miller is laughable--though I had a brief response here, I see that Brett Ballmore and j3845 have already provided a much clearer response than mine!

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