“Tubman always carried a gun for self protection and to urge slaves not to give up.”
The Second Amendment is arguably the most contested provision in the Bill of Rights, at least following Heller and McDonald. Let’s discuss.
Founding Era Perspectives on the Right to Keep and Bear Arms and the Second Amendment. While it is no sure proof of the ultimate meaning of the Second Amendment, many of the Framers had strong opinions on the individual right to keep and bear arms, and their opinions shed some light, if not final determinacy, to the meaning of the Second Amendment:
- George Mason: “Who are the militia? They consist now of the whole people….” So if the militia is “the whole people,” then even assuming the modern left’s reading of the text of the Amendment, wouldn’t “the whole people” have the right to keep and bear arms, i.e., everyone, so that they would be prepared to serve when called upon? Just a thought….And again: “[T]o disarm the people [is] the best and most effectual way to enslave them….”
- Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms….The mind that aims at a select militia, must be influenced by a truly anti-republican principle.” And again: “[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them….”
- Tenche Coxe: “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American….” And again: “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”
- Samuel Adams: “[T]he said Constitution [should] never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” Notice how the right of “the people of the United States” to “keep their own arms” is mentioned alongside all other rights we would nowadays consider fundamental.
- George Washington: “A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent on others for essential, particularly for military, supplies.” Of course, he imagines this arming occurring in the context of being a militia, but he at least contends that “the people” ought to be armed (as well as disciplined) so as “to render them independent” of others in acquiring the means to arm themselves. Hardly what gun-control advocates envision for the present. GW – what a gun nut!
- James Madison: in contrasting the new Constitution with European monarchies, he writes, “Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” Not so in the United States, Madison was arguing: “Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”
- Zachariah Johnson: “The people are not to be disarmed of their weapons. They are left in full possession of them.”
- Thomas Jefferson: “No freeman shall be debarred the use of arms.” And again: “The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent…or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.”
- Alexander Hamilton: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State.” Notice his language: “original right of self-defense” suggests a preexisting natural right. This mentality arguably would inform the language chosen in the text (“shall not be infringed” recognizes a preexisting right that will not be curtailed, rather than creating a positive right that can be).
- Noah Webster: “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional….”
- Roger Sherman: “[I]t [is] the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular States, like private citizens, have a right to be armed, and to defend by force of arms, their rights, when invaded.”
Needless to say, the foregoing renders Justice Stevens’ dissent in Heller absolutely, mind-bogglingly inexplicable, when he says that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” Id. at 637. That “common-law right” understood, recognized, and cherished by many major leaders in that era undoubtedly informed the Framers’ decision to enshrine within the text of the Constitution “the right of the people to keep and bear arms….”
The Text. The meaning of the Second Amendment can be understood fairly straightforwardly upon performing a close intratextual analysis of the Bill of Rights itself. Much emphasis by gun-control advocates is placed on the prefatory clause “a well-regulated militia,” as if the right only thereby applies. That, however, ignores the plain language of the text, which speaks of a “right of the people,” not merely a “right of the militia.” The fact that they could have only spoke of militia-related rights, but chose to speak in broader language when articulating the substance of the right, is telling in and of itself. The authors knew how to say the word “militia” – they just had a few words preceding the articulation of the right. But they didn’t. They spoke of “the people.” So who are “the people”? The other Amendments shed light on who “the people” are. What they show is that “the people” meant exactly what it sounds like it would mean – the ol’ “We the People.” The fact is, notwithstanding efforts to obfuscate the meaning of the text by some gun-control advocates who argue its construction is tortured, the text is in fact very clear, as a simple paraphrase shows: “Militias are important/necessary; thus, people have a right to keep and bear arms.” The text noticeably does not delimit the right to only those people who will be in the militia – the fact that Justice Stevens has, following Heller and McDonald, proposed amending the Second Amendment to so constrain the right to only those serving in the militia tellingly suggests that the text (quite clearly!) does not so constrain the right! No one (in their right thinking mind) argues that the right of “the people” in the other amendments could be curtailed by a simple majority vote
- First Amendment: “Congress shall make no law…abridging…the right of the people peaceably to assemble….”
- Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects [including weapons! – see http://itsgrammartime.blogspot.com/2011/02/commadore-norrington-my-effects-please.html ;)], against unreasonable searches and seizures, shall not be violated….”
- Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
- Tenth Amendment: The powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.”
If any doubt remains about the clarity of the meaning of the Second Amendment, see http://www2.law.ucla.edu/volokh/2amteach/sources.htm#TOC35 for examples of state constitutions that articulate different rights with similar phraseology. Note Massachusetts’, for example: “The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.” Tell me, if the liberty of the press no longer proved necessary or adequate for “the security of freedom in a state,” should we suppose this provision should be rendered inoperative so that I no longer have the right? Is my right to “liberty of the press” so inscrutable or conditional? After all, I doubt my “liberty of the press” could prevent the state police from unlawfully imprisoning me and possibly even killing me; nor do I “need” the liberty to be secure, as I can be made perfectly secure without ever writing a blog post or working for a newspaper; does the “justification’s” impracticality therefore render the substantive right nugatory? If not, why do gun-control advocates treat the Second Amendment in that very fashion, arguing its “justification’s” impracticality renders it inoperative?
Surplusage. Another major strike against gun-control advocates’ reading of the Second Amendment is that the so-called “right” (to be in a militia? To “bear arms” only while in the militia? Sometimes I’m not even sure) they imagine the Second Amendment to enshrine is already provided for explicitly in the text of the Constitution. Congress, in Article 1 § 8, was empowered “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and “To provide for organizing, arming, and disciplining, the Militia.” Tell me, why in the world would the Framers feel the need to articulate something that is substantively no different than this provision in Article 1 and yet couch it in terms of a “right” that got included in a “Bill of Rights”? Why would the Framers need to articulate a “right” to “keep and bear arms [when serving in the militia]” when no one would question that “right” in the first place (was there a grave threat to the rights of citizen-soldiers potentially result in the deprivation of their arms while on the battlefield that I don’t know about?), and Congress was already empowered to actualize that “right”? The retort, I gather, is that the “right” in the Second Amendment is that of the states to be able to call their own militias regardless of Congressional action/inaction. This strains credulity for two compelling reasons. 1) First, Article 1 Section 9 contains a delineated (though non-exhaustive, given the 10th Amendment) list of things that Congress would not have the power to do, particularly over against the states – in fact, in many ways Article 1 Section 9 functions in part as something like a “States’ Rights Bill of Rights” in ensuring state governments that Congress would not encroach upon them in the ways so delineated therein (e.g., not prohibiting the importation of “such persons” into any of the states as they see fit until 1808, not preferring ports in one state over against ports of another to the other state’s economic detriment, etc.). If the “right” in the Second Amendment were one merely regarding the ability of states to muster their own militias and arm the members accordingly, such a “right” would naturally have been placed in this section of the main text, ensuring states that Congress’ power to call the militia and regulate it in Article 1 Section 8 did not displace states’ rights to call their own militias and regulate them accordingly. 2) Second, the Bill of Rights is, apart from one proviso in one Amendment (the Federalism Clause in the Tenth), a document that enshrines individual rights, not states’ governments’ rights. Even in cases where it leaves open the possibility of state action apart from federal limits, e.g., in the Establishment Clause of the First Amendment which did not originally preclude states from establishing their own religions, the Bill of Rights is nevertheless through-and-through, apart from that one aforementioned proviso, a recognition of individuals’ rights as citizens of the United States. The left’s attempt to transmogrify the “right of the people to keep and bear arms” into “the right of the state to maintain its own militia” defies this commonsensical observation. Surely the “right of the people” in the Fourth Amendment does not only mean that the Federal government wouldn’t ransack state office buildings. The “right of the people” in the Second Amendment then does not only mean that the Federal government would not prevent states from arming their own citizens. Instead, it recognizes exactly what the plain language of the text purports to recognize, namely, “the right of the people to keep and bear arms,” promising that, at least from the federal level, that right “shall not be infringed.” Whether states could so infringe that right is a question of whether the Second Amendment should be incorporated over against the states (a question McDonald finally resolved in the affirmative), not of the nature of the right itself, which is unquestionably an individual right recognized by the Federal government (just as the First Amendment enshrines an individual right to free speech, the third enshrines an individual right to not be forced to quarter soldiers, etc.). This, of course, makes perfect sense when one considers the natural law backdrop informing the Framers’ and Ratifiers’ understanding of the rights enshrined in the Bill of Rights (see Ninth Amendment, infra).
Early Elucidation of the Constitution: Justice Joseph Story wrote a landmark exposition of the Constitution in the early 1800s. Here’s what he had to say on the meaning of the Second Amendment: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.”
- Read carefully his words. Though he is talking about the right in the wider context of the need for local militias (over against standing armies – hence all the discussion and preference for militias over standing armies in that time), he emphasizes “[t]he right of the citizens to keep and bear arms” and refers to it “as the palladium of the liberties of a republic.” Tell me, how much of a “palladium of the liberties of a republic” is a right that can be entirely annihilated simply by a state’s disbanding, or failing to create, a “militia”? To argue that the right is so delimited flatly contradicts what Justice Story envisions the nature of the right to be
- Notice Story’s fear that, were the organization of militias to fall by the wayside, the right might be held in “disgust”/“contempt,” which would “gradually undermine all the protection intended by this clause of our national bill of rights.” Is this not a prescient summary of the present state of play, where the left despises the Second Amendment and would love to “undermine” this clause, usually arguing that it is arcane because of the ahistorical assertion that “we don’t need militias anymore”
- The left’s assertion is ahistorical because it argues that militias are not needed given that we now have a large standing army, when so many of the Framers sought to empower state militias (and the “whole people” therein who would comprise the militia) out of the very fear of a large standing army! The argument that “we don’t need militias” anymore thus cuts against the very rationale of the Second Amendment, and provides no basis to thus argue that the Second Amendment is de facto inoperative due to the changed circumstances of states no longer calling militias. See Elbridge Gerry’s comments during debate regarding the Second Amendment: “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty….Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” To rely on such concerns of the Framers to reject an individual right is incoherent – the Framers were worried about the citizens of states not being able to adequately resist a potentially tyrannical standing army due to ineptitude with firearms; so tell me how exactly the Second Amendment can be read to not allow citizens to develop such aptitude, particularly in cases where the state governments might grow delinquent in so ensuring?
William Rawle (https://en.wikipedia.org/wiki/William_Rawle) also wrote of the Constitution. In discussing the Second Amendment, he stated: “No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Given that the Second Amendment has been incorporated, states no longer could even pull this off “under some general pretense.” Regardless, note his remarks: even if states, never mind the federal government, seek to “disarm the people,” the Second Amendment “may be appealed to as a restraint” on any such efforts. Needless to say, the foregoing once again renders Justice Stevens’ dissent in Heller absolutely, mind-bogglingly inexplicable, when he says that “the Court…fails to identify any…evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.” Id. at 639. Of course, when one conveniently handwaves disagreeable evidence as “shed[ding] only indirect light on the question,” it is at least understandable how Justice Stevens could so conclude. Id. at 662.
Pre-Reconstruction. Listen to Roger Taney explaining some of the consequences of recognizing the citizenship of African-Americans in Dred Scott v. Sandford: “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” – Note particularly the parallelisms: it would give them, among other things, “the full liberty of speech in public…and to keep and carry arms wherever they went.” Noticeably absent from this is any mention that this right is only limited to “keep[ing] and carry[ing] arms” only in relation to service in the militia and delimited thereby. “Wherever they went” is pretty clear, very broad, and totally unconnected to participation in the militia. That the meaning of the Second Amendment would have grown so distorted that by 1857, a mere 66 years after its drafting, someone who was a teenager at the time of the ratification debates could have so misunderstood its meaning so as to erroneously describe its nature and scope in dicta, breaches the bounds of the realistic.
Reconstruction. To think that the Second Amendment does not guarantee an individual right to keep and bear arms but only a right for those in the militia which thus can be de facto abrogated by disbanding/dissolving the militia is demonstrated to be a misreading by the battle over the scope of the civil rights of newly freed African-Americans following the Civil War. The Freedmen’s Act, for example, stated: “And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion…the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.” Note the language used: “the constitutional right….” (Freedmen’s Bureau Act, 14 Stat. 173, 176–77, enacted July 16, 1866). The scope of this envisioned “constitutional right” (notice again the language – what the enacters presumed they were vouchsafing for African-Americans was the constitutional right, not something supra-constitutional) was ably elucidated by Alan Gura in the petitioner’s brief in McDonald v. City of Chicago, as well as the majority opinion in D.C. v. Heller. It is also helpful to see what the background the Civil Rights reformers in the 1860s were legislating/fighting against was. A few snippets from pertinent examples will help demonstrate this.
- So-called “Black Codes” restricted the rights of African-Americans to individually keep and bear arms. Most tellingly, some states also restricted the rights of African-Americans to serve in the militia, language that was employed in addition to language restricting the rights of African-Americans to keep and bear arms. Why is this telling? Because, as one can deduce, if the Second Amendment only guaranteed the right of citizens to keep and bear arms in the context of being a member of the militia, then the separate prohibitions are unnecessary and illogical – a prohibition on the “right” to serve in the militia would have sufficed to prohibit the individual right to keep and bear arms. See https://en.wikipedia.org/wiki/Black_Codes_(United_States) and sources collected therein. Ultimately, “Railing against the Black Codes as returns to slavery in violation of the Thirteenth Amendment, Congress passed the Civil Rights Act of 1866, the Fourteenth Amendment, and the Second Freedmen’s Bureau Bill.” Some examples, all of which demonstrate that the Second Amendment (and comparable provisions in state constitutions – see http://www2.law.ucla.edu/volokh/2amteach/sources.htm#TOC35 for a collection of such provisions) recognized an individual right to keep and bear arms apart from membership in “the militia” – after all, if it didn’t, none of these laws would have been necessary.
- “Some states explicitly curtailed Black people’s right to bear arms, justifying these laws with claims of imminent insurrection….In Mississippi and Alabama, these laws were enforced through the creation of special militias”
- “Mississippi quickly passed one law providing for the immediate organization of volunteer militia companies and another outlawing possession of weapons by Negroes”
- Also in Mississippi, a law was passed requiring that “Negroes must not carry knives or firearms unless they were licensed so to do”
- “Advised by the Florida governor and attorney general as well as by the Freedmen’s Bureau that it could not constitutionally revoke Black people’s right to bear arms, the Florida legislature refused to repeal this part of the codes”
- In Texas, “Negroes were not allowed to vote, hold office, sit on juries, serve in local militia, carry guns on plantations, homestead, or attend public schools. Interracial marriage was banned”
- In Kentucky, “Some legislation also created informal, de facto discrimination against Blacks. A new law against hunting on Sundays, for example, prevented Black workers from hunting on their only day off”
- “Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms….Their arms are taken from them by the civil authorities….Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” Heller at 614–15.
- “A joint congressional Report decried: ‘[I]n some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freedmen. Such conduct is in plain and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’” Heller at 615.
- “[A]n editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that ‘[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.’” Heller at 615.
- “The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Heller at 615–16.
- “Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: ‘Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.’” Heller at 616. Notice the language here – nowhere is the constitutional right imagined to be delimited to only a right in conjunction with serving in the militia. Rather, as the majority would later hold, the “well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms’” applies with respect to “arms and weapons which any person may have for his defense….”
- “With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Heller at 616.
- As the Heller Court observes, one major constitutional scholar in the Reconstruction Era discussed the scope of the Second Amendment, saying, “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty….But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose….” Heller at 617. This goes exactly to what we were arguing, and flatly contradicts your position, which is that the right is only secured to those serving in a militia, and this can thus be abrogated de facto by a state refusing to muster a militia. This constitutional scholar was aware of that very interpretive possibility, which he identified and roundly rejected as a viable interpretation of the Second Amendment. The scholar was Thomas Cooley, widely respected as one of the most preeminent constitutional scholars of the day. See https://en.wikipedia.org/wiki/Thomas_M._Cooley.
- Timothy Farrar wrote regarding the Fourteenth Amendment: “The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to “life, liberty, and property,” to “keep and bear arms,” to the “writ of habeas corpus” to “trial by jury,” and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.”
The Ninth Amendment: Even if I were wrong about the meaning of the Second Amendment (which the foregoing, I hope, makes clear I am not wrong about), the Ninth Amendment would likely allow for the possession of firearms by individuals. The Ninth Amendment declares that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was intended “to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed” (https://www.law.cornell.edu/constitution/ninth_amendment). As Justice Goldberg recognized in his concurrence in Griswold v. Connecticut, a concurrence joined by Warren and Brennan, “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments….the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.” Griswold at 488. And, as one commentator observed in the Reconstruction Era, “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction….[I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” Heller at 619. Note the language: the right exists even “[a]side from any necessity of self-protection to the person….” That’s because it is a right that preexisted the Constitution and was not surrendered by the people in the adoption of the Constitution. A brief look at English Political Philosophers so demonstrates:
- Sir Edward Coke, Institutes of the Laws of England: “a man’s house is his Castle, and a person’s own house is his ultimate refuge; for where shall a man be safe, if it be not in his house. And in this sense it truly said, and the laws permit the taking up of arms against armed persons.” To summarize: a man has a natural right to self-defense in his own home, which is why the laws permit the taking up of arms.
- Thomas Hobbes, Leviathan: “The right men have by Nature to protect themselves, when none else can protect them, can by no Covenant [the agreement between individuals to form a government, and the laws enacted thereby] be relinquished.” To summarize: the natural right to self-defense via means commensurate with what is necessary given the force with which they may be threatened, is a natural right which even the creation of a government cannot render nugatory.
- John Locke, Two Treatises of Government: “Must men alone be debarred the common privilege of opposing force with force, which nature allows so freely to all other creatures for their preservation from injury? I answer: self defense is a part of the law of nature, nor can it be denied the community, even against the king himself….” To summarize: individuals have a natural right to self-defense, even over against the ruling power or any such diktats coming thereby.
- Montesquieu, The Spirit of the Laws: “Who does not see that self-defense is a duty superior to every precept?”
- Cesare Beccaria, On Crimes and Punishment: “It is a false idea of utility to sacrifice a thousand real advantages for the sake of one disadvantage which is either imaginary or of little consequence; this would take fire away from men because it burns and water because it drowns people….Laws forbidding people to bear arms are of this nature; they only disarm those who are neither inclined nor determined to commit crimes. On the other hand, how can someone who has the courage to violate the most sacred laws of humanity and the most important ones in the statute books be expected to respect the most trifling and purely arbitrary regulations that can be broken with ease and impunity and that, were they enforced, would put an end to personal liberty — so dear to each man, so dear to the enlightened legislator — and subject the innocent to all the vexations that the guilty deserve? Such laws place the assaulted at a disadvantage and the assailant at an advantage, and they multiply rather than decrease the number of murders, since an unarmed person may be attacked with greater confidence than someone who is armed. These laws should not be deemed preventive, but rather inspired by a fear of crime. They originate with the tumultuous impact of a few isolated facts, not with a rational consideration of the drawbacks and advantages of a universal decree.” To summarize: Agree or disagree, but what the liberal commentariat consider to be the “defensive gun myth” has an ancient provenance. This author envisioned gun control legislation to be “a false idea of utility….” This author also states something that appears regularly in memes, namely, that it is folly to think that criminals are going to obey gun laws rather than just find easy workarounds. All that such laws do is put at a disadvantage the already law-abiding, and puts no impediment in the way of the criminal, but instead gives the criminal a newfound advantage. Tellingly, Jefferson quoted this very section from Beccaria in his own Legal Commonplace Book. See https://www.monticello.org/site/jefferson/laws-forbid-carrying-armsquotation; http://www.cnn.com/interactive/2013/07/us/jefferson-rorschach-guns/.
- Blackstone, Commentaries on the Laws of England: “Self defense is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.” Id.: “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which…is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” To summarize: even though there are limits, the right to keep and bear arms, subject to “due restrictions,” is a logical extension “of the natural right of…self-preservation.”
- One later commentator summarizes Blackstone in this way: “The right of self-defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” St. George Tucker, Annotation to Blackstone’s Commentaries
The Left Has Lost Its Way. Tellingly, the view of the Second Amendment I am herein articulating was, and is, espoused by many deep-blue liberals or icons thereof
- Teddy Roosevelt, in his 1906 State of the Union, said, “We should establish shooting galleries in all the large public and military schools, should maintain national target ranges in different parts of the country, and should in every way encourage the formation of rifle clubs throughout all parts of the land.” Though he was talking about the need for a ready citizenry due to the small size of the standing army, what this evinces is a recognition of an individual right to keep and bear arms – where else would the rifles come from for the private rifle clubs (private, because note the distinction between what he wants the government to “establish” and “maintain” v. what he wants the government to “encourage”) Roosevelt wanted to “encourage the formation of,” among the other things he wanted to establish?
- Gandhi, though obviously irrelevant to a discussion of the meaning of the Second Amendment, had this to say about firearms ownership: “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms as the blackest. If we want the Arms Act to be repealed, if we want to learn the use of arms, here is a golden opportunity.” The Act he referred to stated, “No persons shall manufacture, convert or sell, or keep, offer or expose for sale, any arms, ammunition or military stores, except under a license and in the manner and to the extent permitted thereby.” https://www.unodc.org/tldb/pdf/Bangladesh_Arms_Act_1878_Full_text.pdf. That Gandhi opposed such a regulation makes the modern left’s (e.g., the “we should be like the UK and Australia” crowd) support for these very types of regulations palpably ironic. Of course, Gandhi was dealing with the specter of colonialism, and undoubtedly this Act was a way by which to subdue and subjugate the Indian subcontinent in that historical struggle – but that point only reinforces the individual right to keep and bear arms given the historical backdrop to the Second Amendment, namely, that absent an individual right to keep and bear arms, tyranny is too readily available to those in power.
- As an interesting aside, this Act also had a “gunshow loophole” – I wonder if Gandhi thought this was a bright spot in a law he otherwise opposed: “Nothing herein contained shall prevent any person from selling any arms or ammunition which he lawfully possesses for his own private use to any person who is not by any enactment for the time being in force prohibited from possessing the same….”
- Hubert Humphrey, Lyndon Johnson’s Vice President and the Democratic Nominee for President in 1968, who, as I am sure most know, was even in his own day in many ways a modern liberal, shared this view. In 1960 Humphrey stated, “Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.” Note his own selected emphases, repeating what the modern left considers to be the “trope” about the Second Amendment being a “safeguard against a tyranny which now appears remote in America….”
- Martin Luther King, Jr., weighed in on the subject: “the right to defend one’s home and one’s person when attacked has been guaranteed through the ages by common law.” In context, the self-defense he is talking about is armed self-defense. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/01/guns-and-freedom/ for a great write-up from someone sounding a moderate tone but criticizing what he feels are “liberal stupidities over guns,” naming D.C.’s absolute prohibition as one such example. The author also discusses “the very old tradition of black people standing their ground.”
- Note who the author of that WaPo article is: https://en.wikipedia.org/wiki/Charles_E._Cobb_Jr.
- Laurence Tribe, a cofounder of the American Constitution Society, part of Al Gore’s legal team in 2000, and adviser to Obama in 2008 (so, he’s no FedSoc member in sheep’s clothing!), writes of the Second Amendment in his treatise American Constitutional Law: “Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.” That a liberal constitutional scholar recognizes that an individual right is not only enshrined against federal encroachment in the Second Amendment but also probably incorporated against the states from encroaching by the Fourteenth Amendment shows that McDonald was no conservative-libertarian coup contrary to the text of the Constitution, but rather an understanding shared even by liberals.
Limits. As the Heller Court itself noted, there are limits to the Second Amendment right, as there are to all rights. We can argue what those limits are – e.g., what is an “arm” in the constitutional sense, in what ways does the Amendment protect the “keep[ing] and bear[ing]” right and in what ways does the Amendment allow for restrictions in how that it so done, etc. But those are all arguments about the scope of the individual right, not whether an individual right exists. And, I hope it is now agreed that it is folly to argue that the possibility for limits to a right allow for the de facto abrogation of that right via back door regulations. Otherwise, our constitutionally enshrined right to freedom of the press could be de facto abrogated by Congress or States “regulating” blogs, newspapers, Twitter, etc. The absurdity of such a position, I trust, is so facially obvious that an elucidation of it is not necessary. Why, then, somehow gun-control advocates presume that the possibility exists for that to happen with respect to the Second Amendment, but not the First (or any of the others), escapes me, I do confess. I will make one brief note about limits: the Framers were quite familiar with guns that could fire upwards of four hundred rounds a minute, so let’s please stop with the “arms only meant muskets” trope. See https://en.wikipedia.org/wiki/Belton_flintlock; https://en.wikipedia.org/wiki/Puckle_gun; https://en.wikipedia.org/wiki/Kalthoff_repeater.
Conclusion. Even though the concerns of the Framers at the time of the enactment/ratification may no longer obtain today in any number of circumstances, we do not lightly discard the rights we reserved to ourselves in the Constitution, particularly those our forebears specifically chose to delineate in the Bill of Rights. Although we no longer fear the government seizing printing presses to prevent the dissemination of anti-government literature (you know, because we have the interwebs now and all), we nevertheless still recognize a fundamental “freedom…of the press…,” which was nonetheless enacted against the backdrop of a tyrannical government physically seizing or otherwise preventing the operation of printing presses. Just because times have changed, the fundamental right to operate a printing press (or its contemporary equivalent) does not fade into oblivion. That critics of the Second Amendment decide to treat the rights enshrined therein as outmoded due to changed circumstances, and endeavor to force it into oblivion, says much about their ability to rationalize away parts of the Constitution they do not like, but it does nothing to inform the meaning of the text or the nature of the right therein enshrined. It is hoped that this personal effort at expounding upon the meaning and enduring validity of the text helps advance your thinking about this subject, and if possible that it might lead to a break through where others have failed, as nothing I have said herein is novel or not otherwise already available for study.
Further Reading. Petitioner’s Brief, McDonald v. City of Chicago, 2009 WL 4378912 (No. 08-1521) (Nov. 16, 2009).