January 10, 2013
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Why Would Civilians Own Military-Style Weapons?
This will be my last gun-related post for a while–I hope. But I’ve been repeating myself a lot lately, and when I find myself repeating myself a lot, it’s nice to be able to put my thoughts all down in one place (like this blog post) which I can link to and reference.
As the gun control discussion heats up here in the U.S., politicians who are in favor of various types of gun bans keep assuring me that they won’t infringe on the rights of hunters. They tell me that they just want to ban and/or confiscate “military-style” weapons but will not make it harder to own “sporting” weapons.
I think these politicians are a little confused. See, while I am a hunter, and while I appreciate their assurance that my Marlin .35 won’t be made illegal, I know that the Second Amendment was not written to protect the rights of hunters. The preservation of gun ownership for the purposes of hunting and target shooting is a nice by-product, a perk, but it’s not the function nor the purpose of the Second Amendment.
So what is the purpose of the Second Amendment? Why does it say that citizens should have the right to bear arms?
I’m an English teacher, so my first response to questions like these is to go back to the text.1) “A Well-Regulated Militia”
Here is the actual text of the Second Amendment to the U.S. Constitution.
It’s important to recognize the reason for this amendment–and for the other ten amendments that make up the Bill of Rights of the Constitution. The Founding Fathers were concerned about the abuses of power that they had suffered at the hands of the British government. They were focusing very hard on making a system of government which could not inflict such abuses on its citizens. The First Amendment was established because the British government had limited the free speech and ability to assemble of colonial citizens; the Third Amendment was established because the British government had quartered its troops in the homes of colonial citizens, etc.
The Second Amendment was no exception. As tensions in the colonies rose, the British government had taken steps to disarm the colonies. Before the war, as dissenting Americans formed their own militias (in opposition to the Loyalist militias), Parliament established an embargo on firearms and ammunition on the colonies. The first shots of the Revolutionary War, fired at Lexington and Concord, were sparked by an attempt of the British Regulars to seize and confiscate a cache of arms from a local militia.
It’s also worth noting that the Constitution would not have been ratified were it not for the addition of the Bill of Rights. Anti-Federalists were concerned that the Constitution gave too much power to a central federal government and did not leave enough power for the state governments. The amendments of the Bill of Rights were a way of placating the Anti-Federalists, limiting the abilities of the federal government.
So, why does this amendment say that the people should get to own weapons?
It specifically says that it’s because “a well-regulated militia” is “necessary to the security of a free state” (Emphasis mine). That is, should the government of the United States ever become tyrannical, or should the United States ever come under threat of foreign invasion, the Founding Fathers wanted average citizens to be able to resist, the way they themselves had resisted in colonial militias.
Noah Webster confirmed this when he said,
“Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. 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 pretence, raised in the United States.”Similarly, James Madison spoke of “the advantage of being armed” as the reason the people need never fear their government.
The Second Amendment isn’t about hunting. It’s about the right of the people to defend themselves against a hypothetical future tyrant.
2) Who is in the Militia?
“Ah,” you may say. “But it specifically mentions militias. So if citizens want to own firearms, they should have to join the National Guard.”
Not quite. There are two more laws I’d like to look at, as well as two Supreme Court Rulings. What it comes down to is that the definition of “militia” is more fluid than many people realize.
The first militias under the new government were akin to the “posse” of Western movies: law enforcement officers such as sheriffs were often underarmed, and in the event that greater force was needed, they rallied a bunch of armed citizens to help enforce the law. This changed with the Militia Acts of 1792, which established state militias and set rules for their use. The second Militia Act of 1792 was actually an act of conscription: it declared that the militia consisted of every “free able-bodied white male citizen” between the ages of 18 and 45, with the exception of those in certain occupations. All such citizens were responsible for owning and maintaining their weapons (a musket, a bayonet, gunpowder, 24 bullets, etc.)
These militia acts were replaced by the Militia Act of 1903, which re-organized the militia into a federally-funded body, the “organized militia” (the National Guard). But this act did not fully do away with the earlier definition of “militia.” It still allows for the “unorganized militia,” which consists of:
- All able-bodied males between the ages of 17 and 45
- All retired members of the armed forces up to the age of 64
- All female citizens who are also members of the National Guard
To put it simply, if you fall into these categories, you already are a member of a militia–whether you know it or not.
(Not that gun ownership is limited to these militia members. The Supreme Court has ruled that firearm ownership is not contingent upon membership in a militia–even with such a broad definition of “militia” on the books. In 2008 the Supreme Court ruled in a fascinating case known as District of Columbia v. Heller, in which the constitutionality of Washington D.C.’s handgun ban was challenged. In the Court’s ruling, the majority opinion interpreted the Second Amendment as being linked to the idea of the unorganized militia, but not contingent upon it: The first part of the Amendment is its purpose, but the second part is not limited by the first part: “…the right of the people… shall not be infringed.”)As a member of the unorganized militia, I actually have a responsibility to defend my country, whether against outside invasion or against unjust internal tyranny.
3) What kinds of firearms should the unorganized militia have access to?
It has been said facetiously, by some proponents of gun control, that if the Second Amendment guarantees the right to bear arms, the only types of arms covered by this guarantee should be those arms in existence at the time of the Second Amendment’s drafting: namely, flintlock muskets.
This is, of course, patently ridiculous, and the Court ruling in D.C. V. Heller explains why. “We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”This is not to say that every kind of weapon should be available to the average citizen. I would not advocate that non-military citizens, whether militia members or no, should have the individual right to own smart bombs, predator drones, or bunker-busting missiles, by any means!
The National Firearms Act of 1934 was passed in response to criminals using weapons superior to those policemen had available. Who doesn’t associate the 1920s gangster with any other weapon than the Tommy-Gun (Thompson Sub Machine gun)? Fitted with a drum mag, this fully-automatic weapon was the bane of policemen for years. So, Congress passed a law strictly regulating ownership of machine guns, silencers, grenades, and short-barreled shotguns.
I have no problem with such a law–that makes perfect sense. But here’s where it gets interesting.
In the Supreme Court case United States v. Miller, a man was prosecuted for transporting a short-barreled shotgun in violation of the National Firearms Act. His defense was an appeal to the Second Amendment. But the prosecution (the U.S. Government) tried to argue that the Second Amendment didn’t count here specifically because the shotgun had no military purpose, and “The Second Amendment protects only the ownership of military-type weapons appropriate for use in an militia”!
That’s almost the opposite of what gun-control advocates are arguing now.
Anyway, the Court upheld the NFA in Miller. The Second Amendment does not apply to all kinds of weapons. It is not a violation of the Second Amendment for the government to restrict certain kinds of weapons. However, there is the strong implication that it *does* protect private civilian ownership of weapons appropriate for the military, because of the broad-based definition of “militia.” The court ruled that Miller was not guaranteed the right to own a sawed-off shotgun because such a weapon had no military application for the public defense.In the Court’s later ruling in Heller, the majority opinion commented on Miller‘s ruling:
“We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machine guns (not challenged in Miller) might be unconstitutional, machine guns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” …The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”So, that being said, what kind of firearm should we expect the unorganized militia to be able to own?
Average soldiers in modern militaries are armed with Assault Rifles–select-fire automatic rifles with detachable magazines, such as the AK-47 or the M4A1. However, civilians generally cannot purchase, import, or manufacture such a weapon: ownership of fully automatic weapons is very strictly regulated. I don’t think the unorganized militia or the average citizen should be able to privately own Assault Rifles.But neither do I think the unorganized militia should be limited to bolt-action and lever-action rifles. If the purpose of the unorganized militia is the final defense of our nation in the face of invasion or tyranny, perhaps even going toe-to-toe with a standing army, they are at a disadvantage to begin with (in terms of training, resources, etc.). Limiting such a militia to manually-cycled actions seems to violate what the Court’s ruling in Miller seemed to consider the purpose of the Second Amendment. In Miller, the Court seemed to expect citizens to be able to purchase firearms that had a military application: “military-style rifles” or what we now call “assault weapons.”
So I would argue that, in light of the Militia Acts, in light of Miller and Heller, in light of the way that the Supreme Court seems to agree that the Second Amendment should be interpreted, it does not make constitutional sense for the federal government to be able to restrict the ownership of semi-automatic rifles with detachable magazines–which are among those firearms which are “one and the same” with those currently “used in defense of person and home.” Semi-automatic rifles are among the most common forms of rifle, even for purposes such as hunting. And semi-automatic rifles make an excellent weapon for a militia member–practical for field use as well as defense, while not being what the Supreme Court considered “highly unusual” for civilian possession.
4) In Summation:
So while it is very nice of my governor to assure me that he supports the Second Amendment by supporting hunting, that’s not what the Second Amendment is about.
The Second Amendment is about the ability to defend oneself against a variety of threats.
The Second Amendment is about resisting tyranny and invasion.
The Second Amendment is about not being afraid of one’s own government.
The Second Amendment is about, even as a civilian, helping to provide for the common defense.And in light of all that, I feel that these proposed bans of “military-style” weapons or semiautomatic rifles violate the spirit of the Second Amendment.
Further Reading:
The complete ruling of District of Columbia v. Heller, 2008
The Wikipedia article on the U.S. Militia
Comments (36)
Well stated.
argued superbly! thanks!
Should citizens be able to purchase tanks? What about nuclear devices?
I’m sympathetic to this argument, but it feels anachronistic to me. Even if every citizen had an assault rifle, the U.S. government would be able to crush all resistance with an army, a navy, and an air force that is much better equipped. I guess we could go in the other direction, and take that to mean that citizens should be able to own everything that the military has, but there seems to me to be very strong policy reasons for not wanting to do that.
So what will your guns do against say, a drone attack? What you are proposing is futile since government officials (especially the GOP) consider military spending to be sacred. So while you may fear a “tyrannical government,” you are electing politicians that are making it more invincible by adding billions into the defense budget.
And as far as foreign invasion, who the heck is going to invade us?
While you make a sound, well-researched argument, it has little real world application. The only thing more assault weapons will do is add to the civilian body count that is already the highest among developed nations, by far.
@whataboutbahb - @coolmonkey - An individual militiaman was not responsible for procuring his own cannon or mortar, in the Revolutionary War, but only his own musket and bayonet. Artillery and air support would be the purview of the militia as a whole, not of the individual militiaman. Of course an AR-15 isn’t going to be of much worth against a Predator drone or tank, but nevertheless, that’s all an individual could hope to be responsible for: his longarm and sidearm.
If you read Heller, the majority opinion really addresses this directly:
“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
So I’m trying to find that balance between “useful in military service” on the one hand and “lawful weapons possessed at home.” Anything less than a semiautomatic ceases to have any use in modern military service; anything automatic or explosive or more crosses the line past “useful at home.”
Anachronistic? Sure. The Founders couldn’t have foreseen the rapid increase in military technology to the point where it so vastly eclipsed what the average Joe owns at home. Nevertheless, it’s a right built into the most important document of our government, and so we have to figure out what that means in the here-and-now. I see small-caliber military-style semiautos such as ARs (with reasonable magazine capacity limits) as the most logical compromise–military application without being excessive for home use.
Oh, and @coolmonkey , for the record, the guy I voted for in the primaries was in favor of several hundred billion dollars’ worth of cuts to military spending and wanted to bring the troops home from our overseas bases; the guy I voted for in the actual election had pledged to cut the military budget by 43%. Someone’s electing politicians that make the federal government more and more impregnable, but it wasn’t me.
@OutOfTheAshes -
So you’re reading in “useful at home” into the second amendment? It’s not there and neither is Scalia’s “common use” distinction. I think this argument proves too much and it supports getting rid of bans or restrictions on machine guns, tanks, military-grade explosives, etc.
Scalia’s final answer in the last sentence in the passage you quoted is basically “it is what it is and it’s set in stone.” First off, maybe Scalia’s view of history isn’t actually correct. The dissents attack Scalia’s opinion with originalist arguments (and if i’m remembering correctly, I think the majority of historians actually are opposed to Scalia’s view–this might be wrong though it’s been close to two years since I read this case and outside sources for class). Second off, I just simply disagree with the idea that rights cannot evolve in response to the times. To quote Thomas Jefferson: “Can one generation bind another and all others in succession forever? I
think not. The Creator has made the earth for the living, not the dead.
Rights and powers can only belong to persons, not to things, not to
mere matter unendowed with will.”
@whataboutbahb - No, it’s not there in the actual sentence-long amendment, but I thought Scalia did a passable job at demonstrating sources from which to derive such a distinction. Not to mention that without it, it becomes much harder to argue for the constitutionality of the NFA. And I don’t think anyone in this conversation is in favor of lifting the NFA, Scalia included.
I don’t know about which way the majority of historians lean. Using such a gauge as a determiner of accuracy–subject as it is to the fashions and trends of the zeitgeist–seems to me to be a rather problematic idea. Unless and until something changes, either in the Court or the Congress, this is the Court’s ruling on this amendment, and thus is law. I am simply trying to work within such law.
Regarding the evolving of rights over time, again, I fear the implications of allowing something as crucial as human rights be subject to the ebb and flow of current opinion. This is partly because of my own views of human nature–I don’t think we’re socially evolving so much as oscillating. Either the right to self-defense in the face of tyranny is as true now as it was then, or–like the right to own slaves–it wasn’t true then, either.
And what has changed? In the relationships between government and governed, in the tension between those in power and those without appreciable power, how is 2013 different from 1813? Coolmonkey rightly points out that we have a reduced fear of military invasion–the movie Red Dawn notwithstanding–but is this sufficient? (And how recently has this fear subsided to the point of absurdity? I am young, but I am old enough to remember the Cold War.)
I would argue that while our fears of external takeover have diminished, the danger of internal takeover has if anything increased. The Federalists have won, as it were, partly due to Lincoln and partly due to FDR. People are now afraid of their government rather than the other way around. Is it not in such an atmosphere that the Founders designed the Second Amendment to be applicable?
If a right is truly to evolve “with the times” (such a shudder-inducing phrase), must it not do so organically? Must it not come to the point where something like gun ownership dies out due to lack of interest, or social stigma, or coordinated protest, or economic infeasibility? Instead all I hear are threats of confiscation and bans. That does not sound like a right “evolving” to me, that sounds like an attempt to take a right away, no?
@whataboutbahb - The US military has not been able to ‘crush all resistance’ in Iraq or Afghanistan. The governments of Syria, Mali, Somalia, Congo and the Central African Republic have not been able to ‘crush all resistance’ in their countries. The Soviet-backed regime of Mengistu Haile Mariam was not able to ‘crush all resistance’ against Meles Zenawi’s ragtag revolutionaries. The Ugandan army, despite all its tanks and planes, only managed to ‘crush’ Joseph Kony’s resistance in Gulu after the people of Northern Uganda took sides against the LRA in favor of Museveni’s government. A well-equipped army despised by its people rarely succeeds against poorly-armed revolutionaries.
History is not on the side of your argument.
If you want to utterly obliterate a city, these mass weapons may do the trick. But if you want to eliminate revolutionaries while winning the hearts and minds of civilians that they live among, tanks and bombs won’t do you much good.
The envisioned scenario, recall, is that people rise up against what they believe is a tyrannical government. This would take the form of guerrilla warfare, terrorist attacks, and street warfare with different militias or gangs controlling different neighborhoods. Mass civil war and chaotic insurrection. Tanks and bombs are not effective in these scenarios.
@OutOfTheAshes - These scenarios also do not smack of a ‘well-regulated’ militia. What I’m not sure how to figure out, is how we link the ‘well-regulated’ aspect of the militia (who are protecting the security of a free state) with the right of ‘the people’ to keep and bear arms. Who are ‘the people’? Are they an agglomeration of disassociated individuals, each of whom might possess semiautomatic weapons in order to fight the gang across town? This does not help the security of the state, although bringing a Glock to a fight may protect an individual’s ‘freedom’ if the term is interpreted in an anarcho-libertarian manner.
I think that your interpretation of the Second Amendment gives independent militias (such as the Crips or the Bloods) the right to possess semi-automatic weapons. But such militias rarely act in the interests of the security of a free state, and they are usually not very well-regulated.
I imagine you find mass civil war to be an unlikely scenario. But militia/ gang warfare happens even in the United States. And countries where people take full advantage of individual rights (or the ability, whether technically legal or not) to possess weapons for the purpose of armed insurrection, are usually countries which are locked in deep and intractable civil war, with neighbor taking arms against neighbor.
So: I think that in street warfare, terrorist warfare, guerrilla warfare, in mass civil chaos, in true anarchy, militias/ gangs with semiautomatic weapons can indeed be effective against armies with tanks and planes. (And even more effective against each other.) But I don’t necessarily think that this is what the Second Amendment is trying to vigorously defend.
History does not seem to be on the side of independent militias. One of the reasons the Constitution was written was to prevent things like Shays’ Rebellion, which seems to be a perfect example of an independent militia taking arms and waging an insurrectionist war against what it believed to be a tyrannical government.
The idea that civilians should take up arms in insurrection against the federal government also, of course, allowed for Southern secession and the war between the states. It allowed for the KKK to take up arms against integrationist governments, and for lynch mobs to create their own law.
In all of these cases, those who took up arms in insurrection did so because they couldn’t achieve their goals democratically.
Armed insurrection, honestly, tends to be anti-democratic. When the elected government doesn’t give a violent minority its way, that violent minority take up arms and wage war against their neighbors. If they can’t achieve victory at the ballot box, they take it at the point of a gun.
And this is where, Chris, I believe your interpretation of the Second Amendment falls short. It presumes an anti-democratic state, one which is tyrannical and oppresses its citizens against their wishes. Under such a government, we can expect citizens to take up arms whether the law lets them or not.
If a state is governed by its citizens, armed insurrection against those citizens for the sake of their freedoms is unnecessary. A well-regulated militia *is* necessary, in order to protect the security of this free state. So ‘the people’ of that state, as a body, must certainly have the right to keep and bear arms. But this does not translate into an individual’s right to wage war against his neighbor.
So, is the United States governed by its people? I have seen many governments in many parts of the world, and my answer to that question is a resounding ‘yes,’ and radically so. Because the US is governed by its people, those people- as a body- have the right to be organized into well-regulated militias in order to protect the security of this free state, and the people certainly need to possess arms in order to do so.
But do- or should- individuals have the right to take up arms against this free state, in opposition to the people, for the purpose of violently silencing the voice of the electorate? I have my doubts.
If you do not believe that the United States is governed by its people, you may have a different response.
@OutOfTheAshes – You’re only partially correct in that while the AR-15 won’t be much good against a drone – you might not be able to hit it while it’s in flight, but when it’s on the ground, it’s just like any other aircraft – an AR-15 or AK-47 can hellaciously effective.
As for tanks, they can be stopped by digging a ditch five or six feet deep, then covering the ditch so it looks like undisturbed road. When the tank’s weight collapses the ditch covering, the crew will have to exit the tank and be vulnerable to your AR-15 or AK-47.
@OutOfTheAshes -
My point is that Scalia’s argument goes too far without the distinction that he made up, making it seem like it’s unconstitutional to ban machine guns and other weapons–that’s regardless of whether he would want that result. He’s trying to make objective historical arguments but then seems to squirrel in distinctions that weren’t there in the past (or in the language of the constitution) to make sure his argument doesn’t lead to absurd results. But if he’s really doing that second step (coming up with that distinction on his own), that defeats his whole argument.
You realize Scalia’s an originalist, and thus historical arguments play a determinative role in his view of constitutional interpretation, right? Since Scalia is relying on historical arguments to shape the current law, isn’t it kind of important that he’s getting the history right?
What has changed is that in developed, first-world countries revolution is not really plausible nor is it too palatable of an option. It does not matter whether citizens in the U.S. have semi-automatics or not: a revolution won’t work with just guns because of technological advantage of the military.
Times do change things. The entire administrative state is unconstitutional if you hold a very rigid view of the constitution and separation of powers. (And that’s not to say that I’m gung-ho on regulating everything, but basically our government could not function without some sort of administrative body–even though that’s something the founders never even considered or though necessary.)
@Kurasini -
You know those “poorly armed” insurgents in your example typically had things like rocket launches, machine guns, explosives, etc.? And you really can’t think that a failure to nation-build in a country that hates you is comparable to a group of U.S. citizens trying to overthrow their own government? A revolution with semi-automatics in the U.S. might lead to a lot of anarchy and a lot of deaths, but it is very doubtful that it would succeed in overthrowing the government. That’s why viewing the second amendment as a right in this particular way seems anachronistic me.
@mikewb1971 - not to mention the AR-15 is no different than any other semi automatic rifle. It just looks scary.
I’ve got a lot to respond to here, and it’s late, so I apologize if I don’t address every point:
@Kurasini - It depends. Many of those “independent militias” you reference were minorities by far, rising up in violence basically because they were outvoted by their neighbors over an issue they felt strongly on. That, I feel, is not the essence of “unorganized militia” as set down in the Acts. Nor by any stretch are the Crips and the Bloods–who I might add, do not seem to show a preference for rifles semiautomatic or otherwise, but seem to gravitate towards handguns, a weapon with relatively limited military application.
Instead, the Acts seem to reference *an* unorganized militia, singular, comprised of *the* people, singular. The idea here is of the people as a near-unanimous whole rising up. (Naive, perhaps, idealist at best, but there it is.) Not of warring militias duking it out for territory, but of a united people throwing off… something. Remember what that Japanese general said about why he would never invade the U.S., because “there would be a rifle behind every blade of grass”?
And, as you point out, the Amendment itself expects the militia–organized or unorganized–to be regulated. The organized militia, the National Guard, is federally funded and federally regulated; the unorganized militia, should it ever be called up, would be also have to be regulated (though perhaps not federally, depending on who called them up and why). I appeal again to the idea of the posse, the group of armed citizens called up for a purpose by an officer of the law. The original Militia Acts give the President the authority to call up the unorganized militia when necessary.
So therefore, ideally the unorganized militia should be the ultimate in democracy, the will of the people made manifest. When we discuss the role of the militia in uprising, we’re not talking about an uprising against a particular President by 48% of the people because they’re mad at the other 52% for voting him in. That would be a circumvention of democracy. Rather, we are talking about either a failure of democracy (as in a hostile coup) or an abuse of democracy (as in an instance in which the majority are using the law to actively persecute a particular minority). Remember that democracy itself is limited in is usefulness. Ben Franklin once said: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” That is, liberty involves, at times, the limitation of democracy so as to limit democracy’s power to abuse.
We’ve discussed the Civil War before. I believe the states should have had the right to peacefully secede, even if I think their reason for secession was both stupid and morally reprehensible. But the Civil War may be the only example you listed which I would agree is an example of the “unorganized militia” at work.
@mikewb1971 - Naturally. And, of course, with enough foresight, planning, resourcefulness, and luck, one could take on a platoon of trained and armed soldiers with a bow and arrow, a blowgun, or even a knife. What I meant, however, was that the weapons systems being discussed are not on equal footing, and do not convey equal advantage.
The Punisher once said: “All things being equal, bet on the big guy. But all things are rarely equal.”
@whataboutbahb - I don’t understand what the problem is–especially since he specifically addresses Miller and underscores that it is not a violation of the 2A to prohibit certain weapons or the ownership of weapons by certain people (the mentally ill, felons, minors).
You are right that there would have at least been less of a distinction in the past: civilians owned muskets, and soldiers used muskets. But since it seems clear that a distinction *has* been made in the more recent past–by both Congress and the Court, in the formation of the NFA–I don’t think it non-originalist to explore the purposes of the 2A–and the language of Miller–so as to extrapolate a source for the distinction. Really it is from the court’s ruling on Miller that the language of the distinction, “part of ordinary military equipment,” emerges.
Regarding whether such a revolution would “work,” I disagree–our military machine is ideally designed for fighting threats “over there,” or at least for combating terrorist cells, and is less well-adapted for combating a mass uprising on the home front.. But I sincerely hope that we never have the opportunity to know which of us are right: without more data, this disagreement will remain academic.
impressive write up. Very good.
I would like to point out that Firearms like the M1-Carbine, M1 Garand, Mini-14, would be banned as well, but they never show those, because they are not scary looking like the semi automatic AR-15.
@OutOfTheAshes - It most certainly is non-originalist to allow more recent (relatively speaking) decisions by Congress and even SCOTUS to be outcome determinative when it comes to constitutional interpretation–I don’t have a problem with doing that but an originalist should. Scalia has been called a faint-hearted originalist for doing the latter (allowing precedent to trump perceived general public meaning (or whatever form of originalism being relied upon).) And if I recall from Heller (though once again it’s been awhile), Scalia didn’t make his argument about his distinction based around Miller. (I’d be interested in going back and trying to piece together how he tried to insert this distinction in…b/c right now I’m not sure how it fits with either the history or the text.) Without such a distinction it’s simply a reductio ad absurdum.
I was making a similar reductio ad absurdum by saying the right to overthrow a government cannot be guaranteed by only having semi-automatics since it is very improbable that such an attempt would have any chance of success (and thus, machine guns, rocket launchers, tanks, etc. would need to be made available to citizens). And it’s not really a question we can’t try to answer–go talk to people who have served in the military. Talk to multiple people like that. Get their input. I have and the impression I got was that it was very, very, very unlikely for such a “revolution” to work. Most of them are strong gun rights people. One of them really believes that the second amendment is tied to this check against the government via potential revolution–but even he thought it would be very unlikely for citizens to be able to overthrow the government with just semi-automatics.
Damn, I’m not militia eligible.
@whataboutbahb - if a significant minority of US citizens- say, 30% to 40% of the inhabitants of every major city, rose up in armed insurrection, tanks or bombs would be able to stop them only if the US government was willing to bomb its own cities to the ground.
Tanks and bombs be effective only in a territorial war- if, for example, the citizens of Kansas were to arm themselves with semiautomatics and invade Nebraska.
But in mass civil anarchy, big weapons can’t help you much. And, once the mass civil anarchy begins, law and order will have broken down enough for militias to get their hands of bigger and better weapons, no matter what the law says.
@OutOfTheAshes - You have good points. The Franklin quote is pertinent, and the Punisher quote is great.
I’m still uneasy about this. If every citizen registered with Selective Service is indeed a member of an informal national militia, why is this militia so poorly regulated? The right to bear arms is linked right together with the necessity for armed citizens to be well-regulated. ‘Well-regulated’ implies… well, regulation.
I think it might actually be constitutional to require every citizen who desires the unrestricted right to bear arms to register with Selective Service, complete a mandatory term of military training, register all weapons, and to face very heavy criminal charges if these weapons are not kept securely out of the reach of non-militia. This militia member would also be ready to be conscripted for military duty at a moment’s notice.
The right to bear arms implies that every citizen would have the right to join the national militia. It would probably be constitutional to keep out the criminally insane, but anybody else who signs up would be accepted for military training, and would earn the unrestricted right to bear arms.
In this scenario we’d end up with a heavily armed (but well-regulated) citizenry, trained in the use of arms, and keeping those arms very secure. An invading army, a violent and oppressive majority, or an undemocratic regime, would indeed face a rifle- and perhaps even an RPG- behind every blade of grass. There would still be folks who could legally obtain weapons and use them against innocents… but regulation would be a lot tighter, so this would at least be harder to do.
Any citizen who does not join this well-regulated militia would have no constitutional right to bear arms. Local governments could decide for themselves whether (and how) to regulate or restrict the possession of firearms among non-militia. Hunting rifles might be unrestricted in rural Alabama, but pistols might be banned in DC. (A militia member in DC, however, would be exempt from the ban.)
@Kurasini - Personally, I vehemently agree about the training and the keeping their weapons out of the reach of others (not the registration, though, for paranoid reasons of my own). However, the Court points out a distinction made in the text of the 2A:
“A well-regulated
militia
… the right of the
people
[not of the militia]…”
The ruling in Heller interpreted this to mean that the first clause is the purpose of the main clause, but that the main clause is not dependent on the first clause. In other words, the people should have the right to bear arms because we need a well-regulated militia, but the people do not have to be part of the well-regulated militia to have the right to bear arms.
But I really, *really* agree on the idea of training: I wish a lot more safety classes and proficiency classes went along with gun purchases.
Why would civilians own military style weapons?
Because the military uses them, so naturally that alone creates a demand, just like when the Beretta became the official sidearm of the military, everyone wanted a Beretta. Kids play with them in video games, and grow up wanting them, wanting to shoot them. I see that as a problem, partly because they are actively participating in virtual killing with their friends & peers. Want to change the violence we produce in this country? Change the message, because it’s a violent message.
Why? Because we can. It’s an unalienable right, whether you agree or not, and many don’t. They have already given their right away, and so now believe I should too. Violence in people won’t go away by making it illegal, and murder laws prove it.
@OutOfTheAshes -
the Heller interpretation, then, means that gun owners are *not* by default members of a national militia?
Sounds like it’s saying that ‘the people’ do not have the right to bear arms insofar as they comprise a well-regulated militia, but rather individuals have the right to bear arms because as an agglomerate they make up an abstraction called ‘the people’ which could in theory be organized into a well-regulated militia. I don’t like it- the right really seems to be written as a collective right belonging to ‘the people’ rather than an atomized right belonging privately to each isolated individual- but if I wanted to argue with the US Supreme Court I would have taken up a different profession.
Americans have to be licensed and registered to drive cars, to vote, to wire a house, or even to braid hair… to have no licensing or registration required to own equipment designed specifically for death is absurd. Rifles have greater killing potential than Toyotas: users ought to be licensed and registered. If gun users are by default part of an informal national militia, then registration seems particularly necessary- how can the nation call her militia to arms if she doesn’t know who the members are?
As regards paranoia: a vast conspiracy could use data on beautician’s licenses, driver’s licenses, fishing licenses, gun licenses, for all sorts of nefarious purposes, certainly. Anything is possible in theory. But the response to this ought to be public oversight of regulation and registration, rather than the elimination of regulation.
btw, I don’t know why the formatting of my comments is always screwed up. Sorry about that.
Chris, please don’t stop writing about guns and the law. These posts have been fascinating and extremely helpful. I hope to share this link with my Facebook friends as well. Too many people misunderstand why the 2A was passed, and this is a great explanation. Good work again!
@Kurasini -
1) If you have cites to other revolutions to back this up as remotely possible, please share, but it seems absurd to think that 30 to 40% of U.S.citizens in every major city would be proactive enough to join a revolution. Hell, if that many people were to unite to a cause, they could simply reach the result they wanted by voting. And if the U.S. turns into a dictatorship-type regime where voting is no longer done, than I could imagine some cities being burned down if the person in power was sick enough and wanted to retain power bad enough.
2) Big weapons aren’t the only technological advantage the military would have over mere civilians.
@whataboutbahb - Um, 30% to 40% of the electorate could reach the result they wanted by voting? What about the 60% to 70% of the electorate who oppose them?
Of course it’s absurd to imagine a huge minority of Americans rising up in insurrection. The last time this happened was 150 years ago. The Bill of Rights, however, predates the war between the states. And the Second Amendment certainly helped Southerners arm themselves for the secession struggle.
Nevertheless- whether something is likely or unlikely doesn’t necessarily determine whether it is a civil right or not.
2) You are certainly right.
@Kurasini -
1) Voting turnout has been estimated to be under 60% for the last presidential election. So, yes, if 30 to 40% of the voting population want to make a particular change, it can probably be done under current conditions.
The civil war example is a bit different since the states themselves were acting–it wasn’t civilians try to overthrow the government it was states trying to secede.
And as just a side-note: Incorporation (applying the bill of rights to the states (previously they were viewed as only applying to the federal government)) didn’t begin until after the civil war. http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
@Kurasini - Oh don’t worry about it–mine are kind of wonky too.
Yeah, the Heller reading is a little confusing. This is one of those times I wish I had gone for Law instead of Literature, so I could better understand this.
As regards registration: I’m more flexible on it than many of my “gun nut” friends. But, to be honest, it’s not just the g-men I’m paranoid about. Two weeks ago, a New York newspaper publicly published the names and addresses of every holder of a handgun license in two counties, and even made up an interactive thingie for Google Maps that puts a red dot on the address of every handgun license holder. A lot of people have been concerned about the lack of privacy there, and its further implications. But you are right–further oversight is the solution.
@OutOfTheAshes - @whataboutbahb -
I’m learning a lot out of this discussion, btw. Which is pretty rare when the topic is something as heated as gun laws.
I’d never heard about incorporation before. This means that (for example), previously, in principle the federal government could not establish a religion, but each state could establish its own religion? That is fascinating.
Which leads to the second thing I’m curious about: when the Second Amendment refers to the “security of a free state,” does the term “state” refer to the USA, or to each individual state? It had never occurred to me to consider the second interpretation, but now this seems the most likely.
Which means, originally, the *federal* government had no authority to restrict arms, but each *state* could have regulated arms in any fashion it wished?
@whataboutbahb - The Iraqis and the Afghanis have fought the United States government for ten years. According to the progressive propaganda… I mean the main stream news media, they have been putting up one heck of a fight. I have no doubt that American Citizens, if need be, would be able to stand up against an oppressive government. A civil war is nothing to take lightly to be sure. But there are more factors in play than just weapons and technology. You are assuming that if civil war broke out the military would back the government. There is no evidence that that would happen. There would probably be many defectors, not wanting to fight their family, their brothers, their sisters, their neighbors and friends. It would be hard for even trained soldiers to wage an all out war in their home towns.
You assume that an uprising would be the only reason for the second amendment. Defense from foreign powers is just as large a factor as defense from a domestic tyrant. It is a foolish idea to invade a nation were there will be a gun behind every rock and every tree. CMP was started to ensure just such a situation exists.
It does not mater if you agree with this concept either. The fact is the law is the law, and the reason it exists is the reason it exists. The federal government has no authority to ban firearms.
@OutOfTheAshes - You hit the nail on the head with this idea of training and education. We have taught kids to be terrified of guns. We have taught them that guns are evil and tools of evil people used to do evil things. So when someone decides to do evil things they do them with a firearm, and rather than the population being appalled that this person did something evil, they are trained to be mad that the gun was there. I was taught from a young age what a gun was. I shot my first real gun before I ever played a violent video game. I knew the difference and could separate fiction from reality. By moving guns into the realm of myth and mystery, we have removed the ability of people to understand the difference between pushing a video game button, and the responsibility that comes when you send that bullet down range.
You often meet your destiny on the path you take to avoid it. We can continue to try to ban guns, to hide guns, to demonize guns, but that will only continue to make the problem worse. It is not the gun, it is the people behind the gun, until progressives are willing to accept this nothing will ever change. They can ban anything they want, evil people will still do evil things. If they could fix the violence in this nation just by passing a law, then why don’t we make it illegal to kill people.
@Kurasini -
Generally, federal government was viewed as the much bigger threat than states. So, yeah, the bill of rights were originally intended to apply only against the federal government and not the states. To give a quick and dirty summary: Slavery and state discriminatory laws against blacks made us rethink how dangerous states could be as well to personal liberties and the civil rights amendments are generally seen as bringing in a pretty big change to the constitution. Incoporatation is done through the due process clause of the 14th Amendment, but there are people who think that it should be done through the privileges or immunities clause of the 14th Amendment (that path was cut-off pretty early by a Supreme Court overturn that the Court has yet to overturn).
If you want to read up more on incorporation, consider buying Chemerinsky’s Constitutional Law: Principles and Policies treatise for a pretty indepth analysis (that book is the go-to supplement for first year students taking con law in law school). Another good explanation that is a little shorter and more focused on the criminal side is Dressler’s Understanding Criminal Procedure. (I’d recommend the most recent editions of each, since the law has changed at a pretty rapid pace in both areas.)
As for when the second amendment was incorporated–that just happened in 2010 (McDonald v. Chicago). (To clarify something about incorporation: it’s not happened all at once, it’s been a case by case basis on what amendments are incorporated and whether what is incorporated against the state is the same as what the amendment meant for the federal government.)
@obamawatch - I already addressed your first point: “You know those “poorly armed” insurgents in
your example typically had things like rocket launches, machine guns,
explosives, etc.? And you really can’t think that a failure to
nation-build in a country that hates you is comparable to a group of
U.S. citizens trying to overthrow their own government? A revolution
with semi-automatics in the U.S. might lead to a lot of anarchy and a
lot of deaths, but it is very doubtful that it would succeed in
overthrowing the government. That’s why viewing the second amendment as a
right in this particular way seems anachronistic me.”
It’s an interesting point that revolutionaries could be military themselves–not sure how that affects the second amendment discussion though. Will think more about it.
As for your final point: That’s just circular reasoning at its finest combined with a strawmen. The discussion here has been primarily about regulating firearms, not banning them. And it’s circular reasoning that doesn’t necessarily apply to someone who sees constitutional law as more fluid (and there are also originalist points to be addressed about how far the right was thought to go–this has been discussed some in previous comments).
@whataboutbahb - Very interesting. So we’ve gone from, in earlier times, the bill of rights being used to protect the States from the federal government, to more recent times where the federal government uses the bill of rights to protect individuals from the States?
@obamawatch - Gun violence *is* more widespread in the US than it is in functioning states that have tighter restrictions on guns. The easier it is for civilians to get guns, the easier it will be for criminals to get guns. That’s an unavoidable truth. In countries with much tighter gun laws, most violent crime is committed using knives, clubs, and other weapons that do not have the efficient killing capacity of a semiautomatic rifle. This means that violent crime kills fewer people.
Of course there are exceptions, and organized crime is always an exception, but horrific attacks like these school shootings are not committed by the mob.
Of all the wealthy nations on earth, the US has one of the strongest senses of individual liberties & rights being more important than anything resembling the public good. As a consequence Americans have worse health, more entrenched poverty, more violent crime, worse transit systems, higher pollution, less efficient government and more individual liberties than do citizens of many other highly wealthy countries. It’s a trade-off that Americans have always been happy to make, and I don’t see this changing any time soon.
In other words, people kill people better when they have powerful killing weapons. If it were harder for people to get dangerous killing weapons, then fewer people would be killed. But individuals would also have fewer liberties, and one of our revolutionary heroes expressed perfectly how Americans respond when we are asked to sacrifice liberty in order to save life. Patrick Henry said it first, and the American public continues to repeat him:
“Give me death.”
@Kurasini -
That’s definitely one way to put it (though while some of the bill of rights were trying to protect federalism, others were targeting the relationship between the individual and the federal government, so the first part of your statement might need to be tweaked a little). The idea that individuals might need more protection from the states than from the federal government has been an interesting twist in the last century.
Have you heard of the Battle of Athens, Chris?
It appears to be the appropriate use of the 2nd amendment in action, but I’ve not read further into it than the wiki article.