The Long and the Short of the Second Amendment
Jacob Sullum | March 4, 2008, 5:44pm
If you, like me, were wondering how support for the D.C. gun ban can be reconciled with the belief that the Second Amendment protects an individual right to arms, you might want to check out Harvard law professor Laurence Tribe's op-ed piece in today's Wall Street Journal. Tribe, who switched to the individual-right view of the Second Amendment several years ago, nevertheless urges the Supreme Court to uphold the D.C. law when it considers the case later this month. He says the Second Amendment does not guarantee "an absolute right to possess the weapons of one's choice" and so does not rule out a handgun ban. "Under any plausible standard of review," he writes, "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. "
Tribe ignores another aspect of D.C.'s gun law, the provision requiring that even long guns be kept "unloaded and disassembled or bound by a trigger lock." That requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. But Tribe has another argument against accepting the D.C. Circuit's conclusion that the gun ban is unconstitutional:
It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government's uniquely powerful role as governor of the nation's capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.
Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.
In other words, the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed," simply does not apply in the District of Columbia. So I guess we can forget that part about handguns vs. long guns.
On a blog devoted to the D.C. gun case, Alan Gura, one of the attorneys representing plaintiff Dick Heller, seems surprised by Tribe's position:
This is quite a change from Prof. Tribe's position in May 2007. At that time, in correspondence with us, Tribe said he would consider playing a "more central role" in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It's difficult to see how his current position would accomplish that goal.
whit | March 4, 2008, 8:18pm | #
1) it says keep and BEAR. you could make a (bad) argument that DC ban doesn't unduly infringe on the "keep" part (not really, but you get my point). but BEAR means to carry. in dc, you can't carry a handgun, a rifle etc. , so it still doesn't pass the smell test.
and note that transport (unloaded in a locked container) =/= "bear"
bear means to carry on your person
2)
as for the whole milita thang. it is not dependant, subordinate or anything else.
it's ablative absolute. consider an example:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.
would that mean that only "the well educated electorate" could keep and read books.
of course not.
note also that this language was much more common around the time the constitution was written. as prof. volokh points out *darn if i can find the link to his paper right now* several other examples of this type of writing are given, like in state constitutions, etc.
read that example again and tell me would you have to be part of the PEOPLE (iow anybody ) to keep and read books or the Well Educated Electorate.
be honest, and you have your answer.
TrickyVic | March 4, 2008, 9:50pm | #
"""Of course, the "A well regulated militia being necessary to the security of a free State" part adds a certain level of ambiguity to the statement."""
Not really. There are two statments in the 2A.
"A well regulated militia, being necessary to the security of a free state," This is a statement, not a right. It describes a requirment for a free state.
"the right of the people to keep and bear arms, shall not be infringed."
The is the right, it says so in clear print. It's about keeping and bearing arms, it is reserved to the people, and it shall not be infringed. Someone can kid themselves about the what bear means, but people keeping arms and the restriction on the government is pretty clear.
The only ambiguity I can see is wondering why
that first statment is so important that it had to be included with the right. I've heard it called a reasoning clause. The reason why the right, that follows the reason, exist. With that in mind let's rewrite the amendment and see if it makes sense.
A well regulated militia, being necessary to the security of a free state is why the right of the people to keep and bear arms, shall not be infringed. Pretty damn clear. Two different elements, 1. A reason, 2. The right.
Regardless of the reason, the people have the right to keep and bear arms and the government is forbidden to infringe. It's one of the most forward rights written, save maybe the 4th, but some people pretend that's to vague too.
James Anderson Merritt | March 5, 2008, 3:17am | #
The Bill of Rights was tacked onto the Constitution after the Anti-Federalists twisted James Madison's arm because they feared strong federal power and wanted to constrain it. Is that not true?
So why would ANY of those amendments be seen as abridging personal rights in any way unless the abridgment were explicit?
In the case of the 2nd Amendment, the effective clause is written in clear and start language: "the right of the people to keep and bear arms shall not be infringed."
As far as I can see, this takes the regulation of personal arms off the table -- the federal table at very least.
Constitutionally speaking, how does something that is explicitly OFF the table get put back ON the table? By reinterpretation of the language used to take it off the table until wiggle room is found? That seems to me the government's MO in the case of the 2nd Amendment. And that's the sheerest BS.
Amend the Constitution to allow what you want or sit down and shut up. Your topic is currently OFF THE TABLE.
And while you're at it, consider that the same "reinterpret until wiggle room is found" strategy enables the pernicious and counterproductive War on Drugs. Earlier generations were wise enough to know that prohibition required a Constitutional Amendment. They passed one, and later, realizing their error, they repealed it. Apparently, a few more decades of public schooling allowed the return of Prohibition to happen without Constitutional Amendment, and without anyone raising the holy hell that their grandfathers would have raised, back in the days of the original Prohibition.
If we don't even know what our Constitution says, what its purpose was, and how to tell when the government is stepping over the lines that the document clearly draws in plain English, how are we to keep our Republic?
GEErnst | March 5, 2008, 12:34pm | #
Tribe is very confused. He is cited by both sides in Emerson to make their case. He says nothing of conscription, 14th Am. incorporation, the difference between civil society and the State of Nature which is the state of anarchy.
http://www.potowmack.org/2ndtreat.html#94
It all gets down to a pair of very simple questions. Lets ask these to presidential
candidates starting with Republicans who pander to the gun vote:
*****
The DC Court of Appeals released an opinion on March 9 in Parker et al. v. DC Government. After many pages in which the court fabricated an individual right to be privately armed outside of any militia or military context and struck down DC's gun control law, Judge Silberman arrived at these conclusions:
"Reasonable restrictions also might be thought
consistent with a "well regulated Militia." The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia."
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
p. 54
Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. These are the makings of a firearms policy. Do you accept and support Judge Silberman's conclusion? Will your administration work towards a national firearms policy based on these conclusions?
********
Doesn't anyone understand this issue? Judge Silberman's conclusion are not only the makings of a firearms policy they are a devastating repudiation of the gun lobby's core doctrine. The gun lobby would fight viciously to defeat any attempts to implement Judge Silberman's conclusions. The Supreme Court is not going to overturn them. The militia clauses in the Constitution, the Second Amendment, the Militia Act of 1792,
http://www.potowmack.org/emerappc.html,
were all about conscription and military preparedness. There are no individual rights in a conscript military organization.
http://www.potowmack.org/index.html
http://www.potowmack.org/5issues.html
http://www.potowmack.org/gunviol.html
http://www.potowmack.org/heller.html
http://www.huffingtonpost.com/josh-horwitz/will-the-us-supreme-cou_b_87656.html
http://www.huffingtonpost.com/ray-schoenke/oh-what-a-mighty-web-the_b_89646.html
(My post is more than half the way down under the internet handle "GEErnst".)
Do we have to wait till this gets to the Supreme Court? The gun rights ideologies have
been in the federal courts for more than thirty years.
http://www.potowmack.org/warin.html
http://www.potowmack.org/silveira.html
http://www.potowmack.org/nordyke.html
http://www.potowmack.org/emeramic.html
http://wwwa.potowmack.org/parker.html
Can we now at long last get politicians to answer questions that get at what is really at stake?
Neu Mejican | March 5, 2008, 6:36pm | #
MikeP,
I still get the sense that you are in disagreement about the specifics of the gun-control-due-to-gross-and-specific-danger-to-the-common-wealth argument, rather than the argument itself.
IOW, you don't see the number of murders as evidence of a danger, but if someone were to show you convincing evidence of a danger, you wouldn't have a problem with that danger to justify the infringement...as long as it was convincing.
At least that seems to be the case from what you have said...is that fair?
As for the lead-ink thing...I, of course, recognize the danger from environmental lead, but its consequences seem small compared to the number of gun deaths in the country...even in your hypothetical...and the recycling can certainly be advocated for based on a similar harm/benefit profile (given AGW, for instance).
The reason I bring this up, is that it often seems like many libertarians want to claim that they argue with more mainstream views on a topic based on a difference in principle, when in fact they are arguing about where to draw a line based on similar principles used by the mainstream to draw their line.
This shows up most strongly in the smoking ban threads...but seems to occur on other topics as well.
I wonder if it is due to libertarianism being a version of "anarchy lite" (Minarchy)...
Do you believe in preemptively fingerprinting everybody in case they commit a crime?
No, retinal scans are more accurate ;^)
But seriously, I believe that on a very fundamental level, rights come with responsibilities. The fact that you have a gun comes with the responsibility of not using it to molest the rights of others. Whether the community has a strong enough interest in knowing who has taken that responsibility upon themselves or not through a gun registry can be debated...but that registry in and of itself does not seem to infringe upon keeping and bearing arms.
So for your bio-informatics database question, a similar argument could be made that the existence of that database does not infringe upon any rights, even if it opens up the potential for rights to be abused by utilizing the database. Of course, if you believe in a right to privacy, then the bioinformatics database automatically violates a right. It would take an overt action by the individual to overcome that...they would need to somehow give up (a piece of) their privacy rights (by committing a crime, say). So short of crime, are their actions that would warrant an infringement upon privacy rights?
Would we want a registry of everyone who purchases high explosives?
Would we want a registry of everyone who has nuclear material?
Would we want a registry of everyone with a concealed weapon?
Everyone who purchases large quantities of bomb-making materials (like fertilizer)?
I am not sure where I would draw the line on each of these, but it seems clear that a gross and "specific danger to the common welfare" argument can be used for each of these.
Neu Mejican | March 5, 2008, 8:29pm | #
joe,
I don't disagree in general.
Re: lead in newspaper ink...that was being compared to recycling requirements. On that metric, every newspaper thrown away because it can't be recycled has an impact. So, sticking to MikeP's examples, the percentage of items causing harm is not relevant to the decision. It would seem, in his example, to do with the overall load of harm on the society, perhaps.
Lead is more dangerous than CO2, so restricting lead is justified, but forcing recycling is not...or something like that.
So, if we move to guns from this example, it is not the percentage of guns that cause a problem that is important, it is the overall burden of harm that guns produce that justifies limited measures...as long as they do not infringe upon the basic right.
I can even grant that denying everybody the opportunity to buy a pistol, even ordinary law-abiding people is rationally related to reducing shootings, but since 95+% of people being so restricted wouldn't shoot others, such a law would be overly broad.
Sure, but we were not discussing, necessarily, outright bans on hand-guns...which clearly infringe on the right to keep and bear arms, at least to a degree. But even under your restrictions...hypothetically, even if 95% of guns were never used in a crime, if 95% of homicides were committed using a particular type of gun, an argument could be made to justify the restriction on that type of gun, it seems.
But we were discussing less clear examples. Given the potential harm a gun can cause, is it an infringement to require registration or waiting periods...even if we include your rational nexus and narrowly tailored test?
Seems to me that neither test would put such laws in the "infringe" category...no?
