Chiming in on the DC Court Case (Second Amendment)

The Supreme Court will soon hear the DC Court Case dealing with the Second Amendment.   A few months ago, Washington DC’s gun ban was overturned by the DC court of appeals which affirmed that the Second Amendment applies to individuals.  Washington DC has since appealed to the Supreme Court.  This is my take on the Second Amendment.

First here is the text of the Second Amendment (with emphasis added):

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Is it the right of the people?  My answer is yes; and this personal right was the intent of the framers of the constitution.

The following from Federalist 46 (written by James Madison under the pseudonym “Publius”). Federalist 46 “The Influence of the State and Federal Governments Compared” was written to counter the opposition that the proposed Constitution provided for a standing army. Those opposed felt that such a force could be used by the government to oppress citizens (as had been seen in Europe etc) or enforce an oligarchy/despot.  One way Madison addressed the objection was to note the ultimate trump card that citizens carried.  That is, the ability to provide sufficient defense to prevent any tyrant and/or rogue army from infringing our citizen’s rights:

…Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 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. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. 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…

The above clearly shows the framers believed firearm possession (and the ability of credible defense) was a basic right.  Further, the Second Amendment explicitly states that it pertains to “the people”.  The State or states are to be the organizer of citizens (such as into units or formations), designate unit leaders, and provide training (“well regulated”) should a situation warrant such a militia be formed, however, “the people” are to comprise that militia.  Fortunately, we have never come to the point of needing such an ad hoc military force.

Additionally, the right to bear arms as an  inherent individual right is bolstered by the fact that Hamilton (in Federalist 84) argued against incorporating a Bill of Rights (first 10 Amendments) into the Constitution, which appertains to all levels of government.  He argued that “the Constitution itself, in ever rational sense, and to every useful purpose, a Bill of Rights.”  Hamilton was concerned that enumerating those rights would allow government or deceitful motives to argue that non enumerated, but inherent rights, were not protected by the Constitution.  As a result, we have the Ninth Amendment to address this concern.  That the right of the people to bear arms is enumerated in the Bill of Rights (which, according to Hamilton, was unnecessary), again shows essentially how important, and ‘unalienable’ the right was considered.

The Constitution serves as much to limit government as to establish it.  The Bill of Rights specifies some of those limits (one of which is arms).  If you the Second Amendment only pertains to government, it makes no sense.  Why protect the right to arms if the government already retains that right with standing armed forces?  It would be redundant and pointless. The only reason to enumerate the right is if it were one which could be infringed upon by government or nefarious authorities.  An authoritative government will certainly not infringe upon itself, especially one which intends to suppress the populace (as described by Madison above).

Finally, the crux of the matter, in my opinion, is who’s rights the Bill of Rights was written to protect.  It is not called the “Bill of State Rights” or the “Bill of Governmental Rights” for a reason.  The focus is “the people”.  Hopefully, that will not change when the Supreme Court rules on this issue.

For further reading see also:   History of the militia in the United States – Constitution and Bill of Rights

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12 thoughts on “Chiming in on the DC Court Case (Second Amendment)

  1. The collective right of the People to keep and bear arms stems from English tradition of distrust for large standing armies, and the desire to force the federal government to rely instead on citizen-soldiers for national defense. There is no individual right to keep arms in English law.

    The Supreme Court has never agreed that the Second Amendment refers to an individual right to bear arms. This could be a landmark case if the Court reverses itself on this issue.

    I blogged about this last November on One Utah.

  2. Richard’s argument glosses over the fact that the 2nd amendment is based on more than just English law. It is also based on the constitutions and founding documents of various states in the union written before the Bill of Rights. Many of these documents clearly secured an individual right to bear arms to their citizens.

    It would be an error ignore the influence these other documents and the people who wrote them had on the writers of our national Bill of Rights.

  3. Prof. Volokh quotes a lot of sources, but most of them seem to support the concept of a militia-based right to bear arms. For example, the Supreme Court ruling in United States v. Miller (1939). His conclusion is unsupported by his arguments.

  4. While the Framers were influenced by common law and English (as well as other modern and ancient systems), it is not a carbon copy of such. The Constitution was tailored for the people of the United States. When Madison, Jay, and Hamilton defended the Constitution in the Federalist papers, they discussed the intents and benefits of the Constitution. Federalist 46 clearly demonstrates the Framer’s belief that the general populace had the inherent individual right to bear arms.

    Look at the highlighted parts of Fed 46. He notes that Americans had the advantage of being armed – an advantage most did not possess. Additionally, the point of this was to show that if government tried to impose tyranny, it would face an armed populace – which is exactly the reason why European governments precluded the same advantage to their populations.

    The Second Amendment pertains to both State and Federal Governments. The point of the Amendment was to guarantee the right of the people to defend themselves, especially from standing armies (whether State or Federal armies) with nefarious goals.

    Again, if the Bill of Rights was focused on individual rights. If it is considered to only limit the Federal, and not the State, we have serious problems. Such an (false) interpretation would mean that States could infringe on the peoples right to bear arms but the States would then also be able to deny the other basic rights in their jurisdictions. States could then deny freedom of speech (on State issues), force citizens to quarter State troops (National Guard) in their private homes, allow unreasonable search and seizure, deem warrants unnecessary, allow double jeopardy, deny a speedy trial, jury trial, levy excessive bail etc etc. Fortunately, that is not the case – the Constitution and Bill of Rights protects the rights of the individual.

  5. The argument that tyranny can be opposed by an armed populace is playing out in Iraq right now. The chaos has gotten to the point that most sane people who can manage to do so have left the country. I can’t imagine the same thing happening here, but if it did we’d all be sorry.

    This is the 21st Century, not the 18th.

  6. Not sure where the Iraq rhetoric fits in. It seems off topic.

    If you think that the Second Amendment is of no use in this century, that is what amendments are for. If you do truly believe that, you would want to propose an amendment to repeal or modify the Second Amendment.

    I would also note that, while the focus of the amendment, tyranny wasn’t the only reason for not denying the general populace weapons. They also had to deal with outside forces. There’s a reason colonists dreaded indian summers. However, even Indian raids weren’t the only concern. The threat of invasion by other European powers (such as the French, Dutch, or Spanish) also hung over the colonies.
    Communities would huddle together in garrison houses they had previously built. Although men were the primary fighters, women were known to have also been fierce and effective defenders. Anyone who wanted to wait for troops (or a militia) to save them would be dead. The youth were also given arms and, through, hunting were trained on defense:

    “The boys’ pastimes early prepared them for defense. Shooting small game with a bow or a gun and throwing a tomahawk became life-saving skills…” Rev. Joseph Doddridge noted in the 1760’s that “A well grown boy at the age of twelve or thirteen years, was furnished with a small rifle and a shot-pouch.”

    I personally believe the right is still very valid today. If anything it allows law abiding citizens to defend themselves from more localized threats (be it a rapist, criminals motivated by hate, to an organized group seeking to harm others). Like I said, however, if you don’t believe this, that is what the amendment process is for.

  7. The Second Amendment is fine the way it is, it allows states to raise their own militias without interference from the federal government.

    In the present day, given the destructive power of modern military weapons, the idea of unorganized citizens fighting the government is dangerous. The chaos in Iraq is a very relevant example of how this level of violence is bad for society.

  8. Again, the Second Amendment is not applicable only to the Federal government. If so it would state such within the text of the Amendment and would omit “the people”. As stated before, such an interpretation of the Amendment and the Bill of Rights would give States massive powers on free speech and other individual rights enumerated by it. That isn’t the case. The whole point was to reserve certain powers for Americans and exclude government (State and Federal) from infringing on those rights.

    In terms of the arms used, that is for another topic (such as whether or not explosive munitions are incorporated in the definition of Arms). The whole point of the Amendment was to give citizens the means and right to defend themselves against outside forces (including governments at any level) seeking to harm or impose tyrannical rules.

    Even with this and the easy access to firearms (including automatic weapons) we have to this day, the doomsday idea you portray has not happened in the US. The reason for that is that the Founders trusted the populace, government has not attempted to impose tyrannical rule, effective enforcement has stopped terrorist (or would-be terrorist) groups etc. Frankly, unorganized citizens can already cause plenty of havoc – plenty of people could slap together IEDs etc. It hasn’t happened. The citizenry of this country is awesome in how they have handled themselves and their rights.

    The only thing guaranteed if law abiding citizens are stripped of this right is that criminals will have weapons and a defenseless population will be easy pickings for any organized group or cabal (Nazi Germany, Stalin Russia, Cambodia instituted gun control for a reason).

  9. Of course the Second Amendment is only binding on the federal government, like every amendment in the Bill of Rights. The reason the Supreme Court took the case of Parker v. District of Columbia is because DC is a federal jurisdiction.

    On the subject of taking up arms against the US government or most any government in this day and age, it’s kinda crazy to even discuss it.

  10. The Parker case commenced in Fed court because it was a Fed jurisdiction (DC) – if this was a State the case may have started in State Court or could’ve gone to Fed court (Constitutional issue further protected by the 14th Amendment). Ultimately, the case probably would’ve ended up in the same place (Supreme Court).

    I noticed you cited the Miller case. That case did not consider the 2nd Amendment protected a state-right to a militia. If so, the court would have tossed out the case as the accused wouldn’t have an interest in the case because they weren’t militia members.

    Even in the Parker case, the Appeals Court noted that the Supreme Court in Miller noted that the militia was composed of “civilians primarily, soldiers on occasion” and that militia members would bring arms “supplied by themselves”.

    Here’s another interesting quote from Appeals Court in the Parker Case as well:
    “But the District’s claim runs afoul of Miller’s discussion of “Arms.” The Miller Court concluded that the defendants, who did not appear in the Supreme Court, provided no showing that short-barreled (or sawed-off) shotguns–banned by federal statute–bore “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178. However, the Court also observed that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be “of the kind in common use at the time.”

    Personally, I don’t find it crazy at all if citizens would’ve resisted the Nazi and other despotic governments with a desire to ‘rid’ themselves of the ‘opposition’. Fortunately, some have had that opportunity (such as the French resistance in WWII). I also think it good for law abiding citizens to have means for defense. Whether a female defending herself from a rapist or a gay man defending himself from a hate nut or a mother/father protecting their family from an armed intruder.

    Finally, I’m guessing you were trying to characterize my comments to imply that I thought some loonies should take out the US government. Not going to happen.

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