2nd Amendment

A so-called linguist from San Diego has written about his linguistic analysis of the 2nd Amendment.  I'm not going to bother arguing about his linguistic claims; not being a linguist, even an amateur one, there's not much point.  However, the core of his error is not linguistic.  Instead, it's based on complete ignorance of reality.  Witness:

A connection of rationale between an absolute clause and a main clause requires that the absolute be true. Imagine an offer: "Today being St. Patrick's Day, I will buy drinks for everybody." If the speaker is mistaken -- it's not March 17 -- the offer is invalid. This is relevant because the absolute clause in the Second Amendment is actually false: in terms of meaning, it is a general statement (technically a "generic" proposition) akin to "A lion is a carnivore" or "Puppies are playful." You need more than a single counterexample to prove such general statements false. (One vegetarian lion does not disprove "A lion is a carnivore.")

But if you think about it, there are, and historically have been, a great many free states whose security has not depended on a well-regulated militia, including most modern states, as well as many states from different periods of history. The authors of the Second Amendment surely believed that the absolute clause they wrote was true, but it actually wasn't, even then, because of its generality.

The core of the argument here is that if the first clause is somehow proven false, the remainder of the sentence is rendered invalid or ineffective.  This doesn't really strike me as a linguistic argument at all.  Obviously a sentence stating a falsehood cannot be entirely true, but that doesn't mean that the correct judicial response is to void the entire offer.  Imagine the reception you would get from a bar after making the above offer and then telling the bartender that it wasn't a valid offer since you made it at 1am on March 18th instead of on St Patrick's Day itself.  In the formulation used, both clauses have some weight and impact. 

To properly express a binary condition, you would say "If today is St. Patrick's Day..." rather than "being".  So, to begin with, I have some doubts about this linguist's ability to conduct an unbiased analysis.  Especially since many linguists have analyzed the 2nd Amendment and come to very different conclusions.

Now, it's worth noting that in a specific context the author's interpertation has some validity.  When trying to win an argument with an authority figure making a decision, if you can demonstrate that the decision is based on invalid assumptions, it can help in convincing the authority figure to change his mind.  The idea in that case would be to go before a judge and argue that, because the reason for the decision is based on invalid data, the outcome of the decision should be changed.

However, that is much more relevant when dealing with an actual decisionmaker who has the power to change his or her mind.  The 2nd Amendment is a legal construct ratified by the people, and there is a defined mechanism for making changes to it: the amendment process.  The decisionmaker here is the people, not an individual judge who might take it upon himself to change the decision of the people because he believes the reasoning behind that decision invalid.

Make no mistake -- down that road lies judicial tyranny.

However, for the sake of argument, grant that perhaps -- if the first clause can be proven wrong -- then the right to keep and bear arms may be subject to some form of jeopardy.  Is it actually wrong?

For the United States at the time of its founding, the statement "A well-regulated militia is necessary to the security of a free State" is inarguably true.  We had obtained our free State through the use of arms in the hands of a well-regulated militia.  We had no other means to keep it at the time.  Since that time, we have never been without a militia, even if its regulation has been left mostly to chance.  So, for the United States, there is no counterexample. 

Well, that's not true.  Almost no counterexample.  We have one major city under direct federal control that has been without any form of militia, well-regulated or otherwise, for 32 years.  We have the subject of the Heller case itself, the District of Columbia.  How free is the District of Columbia?

It's citizens are subject to door-to-door "voluntary" searches by paramilitary troops.  Those same troops set up barricades around neighborhoods to demand identification and a reason for travel in or out.  Video cameras monitor every movement in major public areas. 

Let's look at some other historical examples of places that never had, or surrendered, their militia. 

Germany, under Hitler, instituted strict firearms laws that included confiscation (after a previous government had put into place a registration system).  As a result those most at risk from the government's forces had no means to resist.  Certainly Germany cannot be characterized as a free state.

What about England?  It's safe to say that the UK has almost completely eliminated (in law at least) any right to arms that its people once had.  Children are punished for refusing to pray.  Adults are imprisoned for defending themselves from burglars.  By any reasonable measure, England is no longer a free state.  That they are not yet a totalitarian dictatorship is small comfort. 

That's by modern standards.  By the standards of our Founders, there may well be no free states left in the world. 

... and explains why it describes an individual right of the people, not a collective right of the states.  This may be useful as a primer to gun control advocates once the Heller decision is finally published.

David Hardy (Of Arms and the Law) has posted a short video clip from his work on a documentary about the 2nd Amendment and the right to arms.

Nicki asks, "What part of shall not be infringed is unclear?"

I'll answer that one.  It's a really simple flaw that undermines the whole Bill of Rights.  While it's disappointing that it would be necessary, experience has shown that there is no other way to maintain the required deference to the rule of law.  So what is this mystery clause, this hidden secret to a Constitutional government, this startling missing element to the 2nd Amendment of our venerated Constitution?

Penalties for violation.

Even if Judge Weinstein rules for plaintiff in the remand trial, as expected, plaintiff may lose because of federal legislation moving in the House.

Rich Heller is a special police officer in Washington, D.C., licensed by the city government to carry a handgun in the performance of his duties protecting the Thurgood Marshall Federal Judicial Center. While city officials want Heller to carry a gun to protect federal judges on government property, they have barred him from possessing a similar gun in his own home to protect himself and his family from criminals in his high-crime neighborhood.

Earlier, maybe even before the attack on Iraq, we reported that private guns shops thrived in Iraq. Probably little different than the pictures we see of gun stalls in Islamabad or Karachi. Many of us wondered how a regime so brutal under a Saddam could even take root in a climate so forged with widespread civilian gun ownership. I would imagine it's standing the Second Amendment defenders in America on their heads! How could it happen? The people - common citizens - had the means at their disposal to overthrow tyranny, didn't they? Are we to conclude from the absence of resistance that Saddam was lauded for his paternal leadership?

It's a familiar cry - 'Enforce the 20,000 gun laws already on the books!' This is considered by conservatives to be the commonsense approach to crime prevention, as opposed to drafting and passing new legislation to deal with the allegedly rampant gun violence in this nation - a typically liberal response to the problem of gun violence.

The Second Amendment. Probably one of the most debated sections of the Constitution today. There are those who believe that the Constitution was written in a certain time, dealing with specific issues, and that because we now have a standing military, the "well regulated militia" is outdated and citizens should not be armed (for our own sakes).

This is a remarkably well-written piece. Simple, straightforward, and honest.

In front of an audience of about 200, Dershowitz advocated heavy regulation of gun purchases, saying that the amendment would prevent guns from being banned altogether.

What part of "shall not be infringed" doesn't he understand?

Gun owners, gun rights activists and supporting allies tend to agree that the war being waged against the Second Amendment is in advanced stages -- that overt infringements of the right of the people to keep and bear arms are now deeply embedded into our society. Most of us are infuriated with the depth and breadth of the anti-gun forces and their puppets. Objective observers see few peaceful options left for restoring our rights.

We have a rare opportunity to offer law students (or volunteer lawyers) a chance to write an amicus curiae brief to the U.S. Supreme Court. Pro-Second Amendment, pro-RKBA law students are needed to work on a brief to the Supreme Court that will urge the Court to review the Ninth Circuit's Silveira v. Lockyer decision. The Silveira decision held that the Second Amendment does not protect the individual right to keep and bear arms, but only affirms the right of the people to be armed when serving in the state militia. The case is being appealed to the Supreme Court via a petition for writ of certiorari. The amicus brief would urge the Court to grant the writ.

In what may be the first endowment of its kind, an arm of the National Rifle Association has pledged $1 million to create a professorship of Second Amendment law at George Mason University law school in Arlington, Va. George Mason law school professor Nelson Lund, a Second Amendment scholar, has been tapped to fill the post.

Tired of being harassed, threatened and mugged, a group of Washington residents filed suit Monday to overturn the District's outright ban on private handgun ownership. Theirs is a constitutional case. Despite the Second Amendment guarantee that the "right of the people to keep and bear arms shall not be infringed," a legal decision in 1939 interpreted this as only applying to members of a state militia. Mainstream legal thinking, however, is moving away from this ruling, and the chances are reasonable that soon this right will be interpreted correctly to apply to individuals, as well.

This editorial is fairly well handled for it's DC audience, but unfortunately propagates a common misunderstanding of the 2nd Amendment case US v Miller in its opening paragraph.

Two Cato Institute scholars announced today that they have filed a civil lawsuit in a Washington, D.C. federal court on behalf of six plaintiffs to vindicate the right of D.C. residents to defend themselves in their home. Robert A. Levy, senior fellow in constitutional studies, and Gene Healy, senior editor, joined by two other D.C.-based attorneys, argue in their complaint that "the Second Amendment guarantees individuals a fundamental right to possess a functional, personal firearm, such as a handgun ... within the home." But D.C. officials "enforce a set of laws [that] deprive individuals, including the plaintiffs, of this important right."

Silveira v. Lockyer is a current lawsuit that challenges the California semi-auto rifle ban on the basis of Second Amendment protection of our individual right to keep and bear arms. The plaintiffs in the case are represented by California attorney Gary Gorski. The U.S. Ninth Circuit Court of Appeals has already ruled (Hickman) that Americans have no individual right to own and carry guns. A three-judge panel upheld that ruling in Silveira v. Lockyer. Gorski has petitioned for a hearing by the full court. Barring a self-reversal by the full Ninth Circuit, this case WILL be appealed to the U.S. Supreme Court.

Today is the day many of us have been waiting for. The 9th Circuit Court refused the request for an en banc (full court) rehearing of the Silveira v. Lockyer lawsuit. This was highly predictable. But the order denying the en banc hearing is far better than any of us predicted! SIX judges dissented -- and ALL OF THEM did so based on their correct interpretation of the Second Amendment as an INDIVIDUAL RIGHT!! This is the liberal 9th Circuit Court. Furthermore, one of the dissenting judges (Kleinfeld) offered an elaborate, detailed analysis of the Second Amendment that contains six sections, 114 footnotes and leaves virtually no stone unturned -- in defense of the Truth about the right of the people to keep and bear arms!!

OK, folks. The appeal to the Supreme Court is underway. It's time to put some major funding behind this case. If the Supreme Court agrees to hear the case, we need to be prepared.

A sharply divided federal appeals court in California Tuesday refused to reconsider its controversial ruling challenging the concept that the right to own any type of gun is automatically guaranteed by the Constitution. The Ninth Circuit Court of Appeals rejected a request for a hearing before the full panel of judges on December's decision, meaning the matter will likely be taken to the United States Supreme Court where fuming gun advocates predicted it would be overturned.

Americans soon could see a shoot-out at the Supreme Court corral. Two circuit courts have issued contradictory readings of the Second Amendment right to keep and bear arms. Such contradictions commonly have been a reason for the top court to attempt to bring consistency to judicial interpretations.

They're both worth a read (Part 1 Part 2), just to see how those who aren't necessarily interested in the topic think about the issues.

... but this time, he doesn't actually provide any evidence, just hot air. I guess if you don't provide evidence, it can't be faked. If you want to know how far in denial this "historian" happens to be, just take a gander at his opening paragraphs:

The struggle over ownership of guns in the United States has taken a dramatic turn. In the midst of the winter holidays, when you could bet that everyone's mind was elsewhere, the Department of Justice decided to revise the Second Amendment.

This latest example of politically motivated historical revisionism completes the task begun by John Ashcroft in 2001 in his infamous letter to the National Rifle Association, which cast aside a hundred years of Justice Department policy on how to interpret the Second Amendment. Now the Department of Justice has produced a hundred-page memo designed to give activist judges a historical pretext for striking down existing gun laws.

Probably the best way to characterize the rest of this article can be expressed in one word: arrogance. We have a historian who, by virtue of his profession, believes that his opinions about the 2nd Amendment are so obviously correct that he need not argue for them -- but instead, merely make pronouncements from on high that his uneducated inferiors will accept gratefully as received wisdom and be appropriately outraged.

I've got news for you, Saul. It doesn't work that way anymore. Welcome to the blogosphere.

The department's novel idea that the preamble of the Second Amendment has no binding force would have certainly shocked the Founders. The most popular legal dictionary used by the Framers of the Second Amendment describes the purpose of ''The Preamble of a Statute'' as providing the ''Key to the Knowledge of it'' since it establishes ''the Intent of the Makers of the Act.''

Just recently, the Supreme Court ruled the opposite in a linguistically similar case. According to Eldred v Ashcroft, the preamble clause is not binding. That ruling covered the preamble to the patent clause, which reads:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

In that ruling, the high court accepts as resolved beyond dispute the premise that "the preamble of the Copyright Clause is not a substantive limit on Congress? legislative power."

And this makes complete sense. The preamble explains the purpose, which is useful in applying the actual text, but does not explicitly limit the grant of power in the Copyright clause any more than it limits the grant of protection in the 2nd Amendment. Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. This is settled law, folks; it's not in dispute.

Another bizarre claim made by Second Amendment revisionists is that the Framers of the amendment thought that bearing a gun and bearing arms were legally synonymous: hunting bears becomes the same as bearing arms. The illogic of the claim is easy to demonstrate. Quakers were religious pacifists opposed to war. Thus, a Quaker might bear a gun in pursuit of a deer, but he would never bear arms. To be conscientiously scrupulous about bearing a gun makes you a vegetarian, not a pacifist!

It is correct that "bearing arms" was a phrase that often had a military connotation. However, it did not have an exclusive military connotation; there are many examples of non-military uses of the phrase; some refer to hunting, others to target shooting or self-defense. Moreover, the 2nd Amendment does not protect the right to "bear arms", it protects the right to "keep and bear arms". There is no military connotation to keeping arms even if we concede that there is one for bearing arms.

It is important to understand, when considering this language, that the "well-regulated militia" of the Constitutional framers consisted of ordinary citizens, armed with their own firearms, and organized in their own defense. If your citizens do not own their own firearms, they cannot form a militia when called up to defend their nation.

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution. Substituting the ideas of the losers for the winners turns history into a science-fiction fantasy, in which one might as well argue that the patriots lost the American Revolution, or the South won the Civil War.

First, as noted earlier, no one is claiming that "bear arms" has no military connotation; the claim is that such a connotation is not exclusive.

Secondly, the Bill of Rights was enacted as part of a compromise between the Federalists and the Anti-Federalists. The views of both sides are represented.

For better or worse, the real Second Amendment links the right to bear arms with a well-regulated militia. If Americans want to change this language, it will have to be by the slow and uncertain process of amending the Constitution. Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.

That's right... a well-regulated militia composed of the people, bearing their own arms. Such a militia is only possible if the right to keep those arms is protected, and that is exactly why the Framers included the 2nd Amendment.

The Department of Justice has released a report on the 2nd Amendment, which concludes that the amendment protects an individual right. It's not immediately clear what effect this will have; courts may give it some deference, but I doubt they would consider it binding. It will be difficult for the Justice Department to argue cases to the contrary, but the administration has already admitted it considers pretty much all existing gun laws within "reasonable restrictions". (I have no doubt it will be cited in many, many cases even so).

Perhaps the most significant benefit we will receive from this opinion will arise the next time an anti-gun administration is in power. If they intend to enact significant gun control and attack the 2nd Amendment, they will need to change this opinion first -- and if you don't believe that will come at a political cost, well, wait and see.

It's big and bold, but some neighbors don't think it's beautiful. A four-by-eight-foot, two-ton monument sits in the middle of Davis? front lawn, complete with a light to illuminate its message at night. The monument features the American Eagle and an inscription of the Second Amendment.

We can't win this fight by staying in the gun owner closet. Owning a gun and supporting the Constitution are nothing to be ashamed of.

A person not prohibited from receiving a firearm by Section 922(g) of title 18, United States Code, shall have the right to obtain firearms for security, and to use firearms ? in defense of self or family against a reasonably perceived threat of imminent and unlawful infliction of serious bodily injury; in defense of self or family in the course of the commission by another person of a violent felony against the person or a member of the person's family; and in defense of the person's home in the course of the commission of a felony by another person.

Thanks to Ravenwood for the link. Unfortunately I can't agree with his desire to support the bill for a variety of reasons. Although I understand that the idea is to support the right to keep and bears arms, by its nature the bill will only limit that right.

So what are the objections? First, the reference to the USC makes the assertion that firearms possession can be regulated, even banned, by simple legislative action. While the courts currently rule as if this were true, the Second Amendment on its face denies any such power to the government. We cannot remedy an unConstitutional assertion of legislative power by legislative means save repeal of the offensive law.

Furthermore, those who have read the arguments laid out in the Federalist papers will recognize another problem: in a government of enumerated powers, spelling out the rights of the people will be taken to permit government control over anything not explicitly protected. In other words, by seeking to protect the right to bear arms in the manners explicitly laid out, this legislative action would instead limit that right and permit government incursions in those areas not protected explciitly.

Consider, for example, this simple case: after passage of the proposed legislation, does an American citizen have the right to posssess a firearm for target shooting? Hunting? Plinking? How about the right to use a firearm in defense of someone else, not a family member? How about the right to build a gun? No protection is offered to those rights, nor to manufacturers. This legislation does not even prohibit an outright ban on large classes of firearms, so long as some firearms remain available. Nor does it ban abusive taxes, such as those imposed by the 1933 regulations on machine guns and short barrelled shotguns. Yet these things are surely rights the Constitution protects.

This is little more than a legislative figleaf. The only part of the bill even remotely desirable or necessary is the statute providing for a legal cause of action (eg, right to sue) for denial of firearms rights. But that cause of action is limited to the rights defined in the bill, and as I described, those rights are riddled with exceptions and actually represent a step backwards from the blanket protection of the Second Amendment. If the Republican House wants some election-year cover for gun owners, they had better put their backing behind the Second Amendment and not this piece of swiss cheese.

Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.

Don B Kates analyzes the Second Amendment. It's a good read, but it gets some things wrong.

The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.

Yet, despite this, citizens at the time often owned cannon, artillery, and warships. The amendment does not limit its protection to "small arms"; it says "arms" and it means ALL "arms". As is acknowleged earlier in the article, the second amendment exists to ensure the people will be armed in order to overthrow their government is such should become necessary. In order to do this, they must be armed with weapons of similar nature and power to those employed by the military forces of the State.

It is reasonable to believe that the founders could not have anticipated such things as nuclear weapons. It is not reasonable to use this lack of precognition to read restrictions in a Constitutional right that clearly does not permit any such thing. The founding fathers provided an amendment process for a reason, and nuclear weapons make one of the most compelling arguments for its use I have ever heard.

Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)

This represents an appeal to history, rather than a rational argument. The Constitution allows for no such restriction on its face, and the traditional practices of other nations cannot be used to override the plain language of the Constitution. I think that the founding fathers would be horrified by the suggestion that juveniles might be prohibited the use of guns; how else is the next generation to develop proficency in their use? As with other issues concerning juveniles, the authority of the parent takes over where the authority of the state stops; if a particular child is not yet old enough or responsible enough to use a firearm, then his parents will prevent him from doing so.

For criminals; if a criminal presents a continuing danger to society, he should be in prison or executed. If he has been released from prison, then he should once more be a free man, with all the rights of free men -- including the right to self-defense and participation in the militia.

The insane do not even deserve to be a separate category; either they are criminals, and therefore a danger to society that can be addressed by the same means, or they are not criminals, and have the same rights as free men whatever their mental oddities. If they are not competent to act as adults, then they should exist under the guardianship of an adult who can make the determination as to whether they should be permitted the use of firearms.

Historically, I do not know what restrictions were in place on firearms possession by criminals and the mentally ill in revolutionary America; but I would be very surprised to learn that there were substantial restrictions encoded in the law. There would, after all, be no way to enforce them.

Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.

From a historical perspective, some degree of registration is perfectly valid. Many of the original colonies had mandatory gun ownership laws. Since every able-bodied male between 17 and 45 was expected to be a member of the militia, they would often be required to maintain such things as a particular type of firearm, along with a certain number of bullets and weight of powder. The local governments maintained muster lists of who was in the militia, with what type of firearm. Generally, those on the list were expected to bring their militia weapon to church on Sunday for inspection.

But there are some important caveats to that. In some cases the firearms were government-issued; where that was not the case, the registration lists contained militia weapons only, and did not include other firearms -- just the one specified for militia duties. But the most vital difference lies in the purpose of the list; any modern firearms registration mechanism would exist for the purpose of law enforcement, whereas the registration lists which existed in colonial and revolutionary America were maintained for the purpose of military service.

Should the modern government announce a return to a militia-based defense, and follow up that announcement by immediately disbanding its standing army, including the National Guard and the police forces in all 50 states, then I will willingly register a single AR-15 class rifle, several magazines, and ammunition for same. Anything else that the government sought to mandate would be registration for law enforcement or confiscatory purposes and, thus, repugnant to the right to arms.

On the issue of licensing, there is even less historical support. Would the First Amendment permit licensing for purchasers of typewriters or printers? Computers? Clearly not, and no modern legislator would even think of attempting to pass such a law. If anything, the Second Amendment provides even stronger protections for the right to arms. There is no interpertation under which requiring a government license to purchase a firearm could possibly be construed as not violating the Second Amendment.

Although the current courts refuse to rule on this basis, the Constitution was intended to be read and understood by everyone. Licensing requirements for firearms are just as unConstitutional as licensing requirements for a printing press or a church.

The current background check provisions live in a grey area. They restrict commerce by dealers, rather than private citizens; they impact criminals rather than the law-abiding; they impose a relatively low burden on the average citizen. I believe the current background check laws to be unConstitutional, but they are not a licensing provision.

The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.

This is, again, a dangerously naive assumption that modern concerns extended to colonial and revolutionary America. The second amendment does not specify that the right to bear arms openly is protected. There is no qualifier. It protects the right to keep and bear arms regardless of whether the arms are borne openly or concealed. It does not specify that applies only to law enforcement officers or the wealthy and influential; it specifies that the right to keep and bear arms is a right of the people.

There are writings from our founding fathers that speak casually of going out for a walk and "putting one's gun in a pocket" in case an opportunity for sport was encountered. Certainly laws forbidden concealed carry of firearms would be difficult to enforce under the 4th Amendment, as no man's person would be subject to search. How then could a concealed firearm be detected?

In truth, as Clayton Cramer outlines in The Racist Roots of Gun Control, laws forbidding concealed carry of firearms were intended to be applied selectively in order to disarm the substantial minority population. Denying the right of racial minorities to possess and carry arms on their person, whether openly or concealed, was part and parcel of the attempt to maintain them in a state of subjugation. To defend those laws today shows an dangerous ignorance of history.