Tuesday, November 27, 2007

The Right to Bear Ye Olde Arms

The ACS/Federalist Society-sponsored discussion/debate on DC v. Heller – the first SCOTUS case since 1939 to address the meaning of the Second Amendment – won't begin for another 2 hours, but I am prepared to upstage the speakers by offering a workable solution for Second Amendment jurisprudence in the 21st Century.

Although the language of this amendment provides infinite grist for the mill of constitutional interpretation, my solution focuses exclusively on one word: arms.

My proposal: The Second Amendment protects an individual right to bear arms as such arms existed at the ratification.
Arms in 1791

Let's look at arms – specifically, guns – as they existed at the time of the ratification.

Guns in 1791 WOULD
Guns in 1791 WOULD NOT
Courts can't wish the Second Amendment away, but they can construe it in a manner that works in today's society.

Arthur Goldberg, the little-remembered Supreme Court Justice who sat on the bench from 1962 to 1965, has been long-derided by social and political conservatives as something of a fool due to his concurrence in Griswold v. Connecticut, where he found a right to privacy in the Ninth Amendment. Lately, these same conservatives have been quoting and paraphrasing Justice Goldberg when they say things like "while the Constitution protects against invasions of individual rights, it is not a suicide pact," a line Justice Goldberg included in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). Applying an admittedly severe form of originalism to cabin the Second Amendment prevents the kind of suicide pact that Goldberg was worried about.

Michelle Obama created a bit of a stir earlier this week when she talked about how the need for guns might vary regionally within the United States. A backstop interpretation of the Second Amendment – one that only protects the individual right to bear arms as they stood in 1791 – permits states to develop right to bear arms appropriate to their circumstances.

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32 Comments:

At 11:28 AM, Blogger ctdonath said...

The detachable-magazine machinegun was effectively invented in 1717. See the "Puckle Gun".

While assorted improvements to arms have been made over the last three centuries, most changes were merely incremental - predictable enhancements not outside what the Founding Fathers had in mind.

Your arguments for limiting "arms" to what existed in 1776 suffer the same failing as the argument that the 1st Amendment "press" only applies to movable-type offset printing. The Founding Fathers were smarter than that; the rights enumerated & protected in the Bill of Rights go far beyond mere availability of products.

 
At 3:38 PM, Blogger PG said...

A backstop interpretation of the Second Amendment – one that only protects the individual right to bear arms as they stood in 1791 – permits states to develop right to bear arms appropriate to their circumstances.

Or we could just resort to a federalist, don't-incorporate-the-2nd-Amendment interpretation that prohibits the federal government from regulating arms but allows the state government to do so as appropriate to their circumstances.

 
At 1:42 PM, Anonymous Jon said...

You really reckon the continental congress considered the Puckle Gun? It was a ship-mounted weapon if memory serves and only used in Great Britain and not for long. It was a purely government-used weapon. Do you think the 2nd amendment gives you the right to a 250 mm cannon? That's in essence the comparison you're making.

If there's ever been a stretch I think that's probably it. It's likely no one in America had even heard of Puckle or his gun and if they did there's no way it was considered in the same line of thought as a individual's weapon.

 
At 5:15 PM, Blogger Adrian said...

A great argument.

Its hard to believe that the founding fathers wanted (or imagined) people able to use modern weapons to kill 10's or 100's of people in a matter of seconds.

Today a small force of well-trained well-armed people can kill at ratio's of 20:1+ (see Battle of Mogadishu). If the desire was to allow for a 'popular' uprising against the government, then shouldn't it be with weapons that weren't such force multipliers that would allow for 'special interest' uprisings?

If not, what is the current justification for the second amendment? That it once was relevant?

 
At 12:00 PM, Anonymous Rollie said...

In view of the latest Supreme Court ruling it would seem that there are two approaches left to gun-control advocates: Either:
a.) Initiate a constitutional amendment that defines gun control in a reasonable enough way that it could be adopted. Eg. exclude from "arms" all weapons of mass destruction including grenades, bombs, automatic weapons not needed for hunting with small clips. And that requires legal permits to assure competence such as with drivers licenses which we all accept as reasonable and necessary.
b.) Initiate a court case that limits "arms" to those that the drafters knew about and were typically carried at the time with very minimum allowance for radical modifications such as automatic. Such an interpretation would allow future contemporary laws to address new developments.

 
At 8:32 PM, Anonymous Anonymous said...

Damn !! Y'all are some really smart people here.

 
At 11:40 AM, Blogger Kevin said...

This comment has been removed by the author.

 
At 11:41 AM, Blogger Kevin said...

I've considered the same points proposed by the author. Bravo!

With the current originalist composition of the SCOTUS, (Scalia recently stated the 14th amendment doesn't apply to women), they would have a difficult time dismissing this argument.

 
At 12:26 AM, Anonymous Anonymous said...

Rather than argue the legal aspects of this topic, all you need to do is look at other civilized countries around you. Look at their low murder rates over the last 100 years. If Americans want to live in their dangerous environment then so be it. Collective freedoms should supercede individual rights. Most laws are based on this principle. I don't think the founding fathers ever envisioned the kamikazes of WWII nor the radical suicide bombers of today. Their pursuit of happiness is not what they would have ever imagined.

 
At 3:30 PM, Anonymous Anonymous said...

I live in Canada, and have a license for my hunting rifle, which really wasn't any hassle to get. I also live in the current violent-crime capitol of Canada. But, under no circumstance do i feel it necessary in my life to have access to: a handgun, and automatic or even semiautomatic rifle, tear gas, smoke grenades, flak vests, ect. And all these things are regulated to protect the public. Handguns are allowed to citizens with additional licensing, and automatic weapons are exclusively for active duty with the armed forces and extreme police action.

I see the 2nd amendment as a statement that any american should be allowed to bear arms for the country (ie in the military or organized militia), to feed yourself on game, and to protect yourself when police are not a viable option. As far as i know, these criteria at times have not been met, such as banning homosexuals from military service, and have been very far overstretched by extreme people (say a man defending his highrise apartment with a riot shotgun). An unchanged 2nd Amendment at this time, is just an aweful idea.

 
At 4:35 AM, Anonymous Anonymous said...

How much Evil can you do with a Single shot black powder weapon - far less than a semi or full auto modern weapon - with unlimited ammo from Wal-mart Forgive this Red Coat for suggesting that you are avoiding common sense and tying yourselves up in knots....

 
At 9:57 AM, Anonymous Anonymous said...

There is no right to bear ammunition. Start controlling the bullets and then start controlling the guns.

 
At 12:08 PM, Blogger jerryray said...

I'm not an educated man ,had no schooling after the young age of 15,but it doesn't take a smart-ass to know if I'm being chased by someone with a (musket)and his first shot is a miss ,well by the time he reloads ,I'll have plenty of time to get the hell out of town.Can't these gun lover's understand a single shot firearm's are NOT killing machine's that are available in today's arsenal..IF they want to play with the BIG one's then join the MARINES.Who knows? maybe you automatic weapons lovers might find pleasure mowing down a dozen or more human beings just by holding down your finger on your big ,bad-ass magnificent "GUN

jerryray

 
At 9:10 PM, Anonymous Anonymous said...

Gun control is more on how you carry and keep your weapons, trigger locks, proper storage, training, sanity checks and keeping your gun in the trunk unloaded till you get home. If you want a semi auto, fine, it stays at the gun club under really tight security room till you want to go shot the crap out of some target, call me up and I'll go with you. But I look at Canada's 52 dead from handguns under gun control to USA's 10,800 dead from handguns with no gun control and wonder why there is an argument from gun lovers, they talk about their rights under the 2nd amendment, what about the 10,800 dead americans rights. They don't have any?.

 
At 9:40 PM, Anonymous Anonymous said...

I think if you own a gun you must join the Militia, as it says.

 
At 4:24 PM, OpenID bi88-cycle said...

Terrific arguments from all quarters. Yes, the Congress of 1791 could foresee incremental changes to arms within the context of their present-day technology. The inventions and innovations that have followed in the last 221 years have taken guns as far from their 18th century versions as it has with aircraft. The keyword is change, which our framers built into the Constitution. The same change that let us free the slaves and let women vote. In terms of the 2nd Amendment, Congress has utterly failed to keep pace with change and provide us a law that works in the 21st century. Who in their right minds would ever think that those men with their powdered wigs and wooden teeth would ever wish to allow ordinary citizens the constitutional right to possess the kind of arms that were used in the Newtown, Connecticut massacre?

 
At 4:42 PM, OpenID bi88-cycle said...

Dear 2nd Amendment purists: Show me proof, ANY proof, that the shooter's mother was part of a well-regulated militia.

 
At 8:43 AM, Anonymous Anonymous said...

I really think Americans and those who own firearms have lost sight of what the Second Amendment allows us own in the way of weapons. Back in 1791 firearms were used primarily for protection and food gathering. Today's individuals have twisted the second amendment and hide behind it in such a way that any type of weapon is fair game to own. If the American Public were to really push the issue about gun control only the military, police, FBI and such would be allowed to use the weapons of today, The average American would have no use for a weapon that fires more than one shell at a time such as AK-47's, M-16 Rifles, machine guns and such. We have relaxed our gun laws so much that any Tom, Dick or Harry or Martha can own whatever type of handgun or rifle or machine gun available in today's market. Our children will be the ones to take down America if the laws concerning Gun Control are not changed, just read the papers.

 
At 6:05 AM, Anonymous Anonymous said...

It seems to me that anyone who needs more than one shot at a time, needs to learn how to shoot. Or starve, because I don't remember the last time my states malitia was called up to protect my family, my property, or another country's invation of my state. I do remember the last time I shot a gun. I came home with enough meat to feed my family and the neighbors for a couple months. I admit I had to fire two rounds because I'm a crappy shot. But those two rounds were also four hours apart!

 
At 4:52 PM, Anonymous Anonymous said...

Let me give you a different take on the 2nd... At the time the Bill of Rights was ratified the Citizens and the Military had access to the exact same weapons. In fact many men carried their own personal weapons. This suggests that the Framers intended this equality between the Government and its Citizens to continue, not to be diminished over time.
Perhaps people should focus more on the individual who picks up any weapon and kills people and how society has failed to protect us from the random lunatic. Taking someones rights away because of what a few MAY do is not fixing anything...
You BEAT that guy!? Whats the matter with you!?
You STRANGLED that guy!? Whats the matter with you!?
You STABBED that guy!? Whats the matter with you!?
You SHOT that guy!? We have to do something about guns!!!

 
At 7:44 PM, Anonymous Anonymous said...

Yeah but nobody is strangling or stabbing or beating 26 kids and teachers while they are at school in a matter of 30 minutes.

 
At 8:33 PM, Anonymous Anonymous said...

I guess you haven't heard of the attacks in other countries, particularly China, where men have gone into schools and killed many children with large knives.

 
At 2:44 PM, Anonymous Anonymous said...

The recent mass stabing in China did not leave 20 children dead; all 22 children survived. I'd take my chances with a knife rather than a semi-automatic rifle that can unload tons of bullets in a matter of seconds.
No civilian NEEDS an automatic or semi-automatic weapon. And, if you hunt, you definitely don't need one. If you think you do, then you aren't a real hunter.

 
At 9:52 PM, Anonymous Anonymous said...

Either the government has the right to restrict certain types of weapons, or it doesn't. If it doesn't then anyone should be able to buy any weapon, assuming they can afford it. If it does then the government should have the right to place restrictions on weapons that aren't for self defense and hunting (or alternatively large magazines and hollow points). I'd love to see somebody with deep pockets sue for the right to carry a stinger or something akin to that. Wonder where the NRA would come down on that, since it's reasonable to expect that the citizenry would require that kind of weaponry to defend itself against the U.S. Air Force under that socialist Obama;-)

 
At 1:21 PM, Anonymous Anonymous said...

When did Americans become so un-educated, so dumb, in thinking that the Second Amendment written in 1791, refers to modern weapons?? If you wish to honor the Second Amendment, then use the weapons of the time....1791..

 
At 10:04 PM, Anonymous Anonymous said...

If the Founding Fathers had perceived that Spike Lee could tweet and say that you were George Zimmerman and weren't a 70 year old couple, you think they'd say a 38 revolver would hold off a mob? This is exactly why high capacity clips should be available. Cops rarely arrive quick enough to stop evil and we are all smart enough to know this. As I get older I want more shots.....sorry if you want to give up your guns, its your right. Don't dare try to tread on my Constitution!

 
At 10:11 PM, Anonymous Anonymous said...

Over 100,000 people die from medical malpractice every year. More than that die from tobacco and more die from childhood obesity.

Why doesn't Obama take the spoon away from Oprah???

Let's stop letting hundreds of thousands of people die slow deaths from tobacco and obesity, while wanting to take away a Constitutional right for a mere fraction of deaths.

Keep things in perspective folks, If you want a gun free country, then get the hell out! This is America and it is our heritage to own and defend ourselves and use guns however we want.

Guns freed our country and will do so again, so they won't be given up!

 
At 5:14 PM, Anonymous Anonymous said...

I'll go back to using the guns of 1791 when our government's armed representatives do the same. Who among you even knows why the Second Amendment was ratified? If you can come up with this simple answer, you should be able to knock yourselves upside the head and retire from spewing ignorant drivel. By surrendering your weapons, you are surrendering leverage, protection, and power. These things are meant to be in the hands of the people. By surrendering your weapons, you are leaving your fate to the rule of a few "elected" officials. The idea of safety provided by government is illogical. Ultimately, YOU are in charge of your safety and sovereignty.

 
At 7:11 AM, Anonymous Anonymous said...

You are comparing the U.S. to Canada? The population of Canada is that of N.Y. and Ohio if I am correct.

 
At 2:58 PM, Anonymous Anonymous said...

Don't forget that every citizen is just as responsible for defending their country as the military. There is about 1 million soldiers, and 350 million citizens to defend. That means you get 1 defender per 350 citizens. That is one example. Next, look what happened to Australia after they banned guns. http://www.ncpa.org/sub/dpd/index.php?Article_ID=17847

As someone else stated, and AR15 is a pea shooter to what the military has. Which is what the 2nd amendment was meant to protect us against. A corrupt government.

Clearly the founders had no idea of an atomic bomb, do you really think if the US Military banned it's own weapons, and the USA was defenseless we would be safer? With power comes responsibility, which is the way it has always been, no matter the size of the gun.

Next thing you know, there will be martial law, curfews, and religion will be banned since it causes so many problems. All to keep us safe because the fearful citizen wanted to take away our rights and freedoms.

 
At 9:11 AM, Anonymous Anonymous said...

You do realize that most of the weaponry (including cannons) of the time of the Revolutionary War were "borrowed" from civilians.

And yes, there were repeating arms at the time ( http://en.wikipedia.org/wiki/Girandoni_Air_Rifle )

So this argument to single shot weapons is faulty at best.

 
At 6:43 PM, Anonymous Anonymous said...

1/10 the population, so corrected for population differences, Canada would have about 520 handgun deaths.

 

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