09 May 2007

Guns and the Constitution: You can run, but you can't hide

The Objectivist
Dunkirk-Fredonia Observer
May 3, 2007

Perhaps the most fun provision of the Constitution is the Second Amendment (“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”). In a recent case before the United States Court of Appeals for the District of Columbia, Parker v. District of Columbia, decided March 9, 2007, the court faced a law that in effect denied District of Columbia (DC) citizens (except retired cops) the right to own guns.

DC argued for a collective-right interpretation of the Second Amendment. On this interpretation, the Amendment protects only the rights of states to have their own military forces. Thus, individuals have no right to possess guns. In court, DC’s legal team argued that the Constitution permitted it and the states to ban guns altogether. Given the liberty-hating zeal of alcohol- and drug-prohibitionists, this gives me the chills. DC thus argued that because the Amendment protects only states’ rights to have militias and because there are either no state armies or federal-government-equipped state forces (the National Guard), the Second Amendment is a dead.

The United States Court of Appeals for the District of Columbia rejected this interpretation. In interpreting a statute, courts often look to factors such as statutory language, statutory context, public understanding at the time the bill was passed, original intent, and precedent. All but precedent support the individual-right model and it is probably best seen as silent on the issue.

The court argued convincingly that the language of the Second Amendment supports the individual-right model, that is, a person has a right to own a gun. The court began by noting that the Amendment assigns the right to “the people.” Taken literally, this means “persons” or “citizens,” or at least something other than states. In addition, the term “the people” appears in the First, Fourth, Ninth, and Tenth Amendments and in these cases it has been interpreted to establish rights for individuals. Furthermore, the court noted, the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) indicates that the authors of the Bill of Rights were well aware of the distinction between individual and state rights. In fact, a 1990 Supreme Court case (United States v. Verdugo-Urquidez) held that there should be a uniform reading of “the people” across the Bill of Rights.

The court pointed out that the statutory context also strongly supports the individual-right model. With the exception of the Tenth Amendment, which is a default rule against federal power, the Bill of Rights (the first ten Amendments) appears to be a list of individual rights. It would be odd if the Constitution’s authors had plopped down a state right in the list without using clear language to indicate that they were doing so.

The court noted that public understanding at the time the Amendment was passed supports the individual-right model. The court cited a number of sources, such as the 1776 Pennsylvania Constitution, in support of the claim that at the time the Constitution was written, gun-rights were justified in part by the idea that persons had a right to defend themselves against attacks by lawless individuals or a tyrannical government. The underlying notion was that the right to own guns was a natural accompaniment of the right of self-preservation. The court pointed out that this idea can be seen in the work of William Blackstone, whose writings influenced American colonists’ thinking. As a side note, given that world-class slaughterers such as Mao, Stalin, Hitler, Pol Pot, and the Rwandan Hutus moved against unarmed populations (rough estimate 60 million killed), tyrannical governments have proven no small threat.

The court argued that the Amendment’s authors intended an individual-rights interpretation. The recorded debates do not directly discuss the relevant clause. However, there is no evidence that anyone in the First Congress thought the federal government had the right to disarm private citizens. The debates indicate that the federalists used the existence of an armed populace and state militia as insurance against a potentially oppressive and tyrannical federal government. The First Congress appears to have used the preface to the Amendment (“A well regulated Militia, being necessary to the security of a free State”) to highlight the individual right’s most obvious benefit.

The court also noted that the one relevant Supreme Court case, United States v. Miller (1939), did not support the collective-right reading. The court argued that it supported the individual-right interpretation because it ignored the federal government’s claim that no such individual right exists. This argument is unconvincing since courts often decide cases on the narrowest ground and the Miller court did this. The court should have concluded that the Supreme Court has not addressed the issue.

The dissenting judge in the Parker case, Karen Lecraft Henderson, argued that the Second Amendment didn’t apply because DC isn’t a state and some Constitutional protections only apply to state residents. Given clear Supreme Court precedent holding that the Constitution and Bill of Rights apply in DC, the historical record which suggests that “free State” referred to the country as a whole rather than each of the states, and that the people hold the right, rather than the people who live in the states, we can safely ignore her argument.

If the Second Amendment protects an individual’s right to own a gun and the Constitution is the supreme law of the land, then anti-gun and gun-control nannies face an ugly decision. They can respect the Constitution at the expense of their anti-gun schemes or they can ignore it. The latter decision commits them to denying the legitimacy of the United States government, because its legitimacy rests on the fact that persons have consented to a government formed and constrained by the Constitution.

In addition, we can only hope that the Supreme Court takes the case and thereby injects the gun issue into the Presidential race. Significant numbers of voters in battleground states favor gun rights and this will drive a wedge between them and the anti-gun and gun-control schoolmarms


The Objectivist said...

I don't believe that the persons arguing for the collectivist interpretation of the Second Amendment themselves believe it. The combination of language, Bill of Rights context, and history align nicely.

My question is why does the left (Democrats and RINO Republicans) so hate guns?

The Objectivist said...

Also, if the left wants to subject gun rights to a cost-benefit analysis, would they want to do so for other liberties?

On some accounts, liberties should be protected even if doing so doesn't make the world a better place. For example, many of us think that the government should not ban simulated-child pornography, ban alcohol, or gay bath houses even if it could be shown that doing so would make the world a better place.

The Constructivist said...

O, I'm way ahead of your wussy libertarianism. I think individuals have a right to keep and bear nuclear weapons. Does the Constitution bear me out?

Combat Doc said...

I see you have been visited by Scotti also. I agree with your points in this post and hope you come visit my site.

The Objectivist said...

Dear C:
The meaning of arms is set in part by the intent of the people who wrote it. To see this consider the following sentence.

1. Frank is gay.

Without knowing who wrote it and when, we don't know if Frank is happy (18th century) or sexually attracted to members of his own sex (20th century).

2. The women gestured at the man with intensity.

We don't know whether the women gestured with intensity or whether the man they gestured toward was intense.

3. Hope is a thing with wings.

This is literally false, but we can get at the meaning (hope has a light and airy feeling to it) by consulting what the speaker meant to convey.

Thus, to understand the meaning of an ambiguous sentence, we need to consult speaker meaning.

The speaker meaning of the Second Amendment intended that persons own guns, not any weapon (e.g., howitzers, nuclear weapons, and tanks).

Hence, the Second Amendment doesn't protect nuclear-bomb ownership.

The Objectivist said...

Dear C:

Here are my questions to you.

1. Do you think that the Second Amendment protects individual citizens' right to own guns?

2. If yes to 1, then aren't most city laws that in effect ban gun ownership and possession flagrantly illegal?

The Objectivist said...

Dear Combat Doc:
I enjoyed your site. There are far too few conservative atheists out there. Plus, I like the fact that your site isn't PC.

The Constructivist said...

O, thanks for the lesson in ambiguity, but authorial intent is a notoriously tricky way of clarifying it. Personally, I think the 2nd amendment is terribly written--what does that initial phrase contribute to the meaning of the sentence, anyway? You seem to be arguing we can ignore it--like most people ignore the "whereas"s and skip straight to the "resolveds"--but it's got to have some (qualifying?) relationship to the terrible passive voice ("shall not be infringed"?!) construction. Personally, I think it's time for another constitutional convention, if only for editing purposes! I have no opinion on the meaning of the amendment; having only seen your argument, I'm of course leaning toward it.

BUT. If you're going by original intent, then are you going to limit possession to whatever "arms" meant in the 18th C? If not, on what grounds do you exclude nuclear weapons, should they someday be shootable out of some kind of individually-held gun-like thingie? (Have you read Neal Stephenson's Snow Crash? Check out the depleted-uranium-bullet-shooting "arm" called "Reason"! And the novel's case for just carrying samurai swords rather than guns if you're in a high-risk job.)

More seriously, do you think criminals, terrorists, and others who show clear warning signs of going on a rampage may have their individual rights infringed upon? Or are you of the "if we're all packing, there'd be a lot fewer [insert school massacre here]s" school? Where would you draw the line on what's available to the individual military dude(tte) being available to their civilian counterparts?

Or am I a schoolmarm for raising such fussy questions?

The Constructivist said...

Oh, and combat doc, I like your site, too, but I'll let O decide if he wants to add it as one of his picks. Don't your fellow conservatives just piss you off on the whole immigration thing, though? Are you with me rather than O on our immigration debates? Or somewhere else?

The Constructivist said...

O, even first amendment absolutists recognize legitimate restrictions on speech (the old "shouting 'fire' in a crowded theater" example; the "fighting words" example; etc.). So just how much of a second amendment absolutist are you?

Also, read this.

The Constructivist said...

And this.

Anonymous said...
This comment has been removed by a blog administrator.
The Objectivist said...

Dear C:
I like your point. However, the level of generality is also fixed by intent.

Hence, the writers or ratifiers (I'm not sure which) did 1, rather than 2.

1. We intend that citizens have a right to own guns.

2. We intend that citizens have a right to own the sort of guns that are around in the late 18th century.

This is similar to the way they intended the right to privacy to be protected and then we have to interpret it as it applies to email, heat-imaging devices, polygraphs, etc.

That said, you're right that the Second Amendment is terribly written.

The Objectivist said...

Dear C:
I like your point about no warning signs from terrorists or insane persons like the VA Tech guy. However, I'm not sure I view the Constitution in terms of bringing about the best results.

I think we should protect gun rights for the same reason I don't think we should have locked up persons with AIDS in the late 80's, even if doing so would have saved many lives.

Rights and liberty arguably trump concerns about bring about the best circumstances.

In addition, even if we are focusing on the best circumstances, it seems that the best way to do it is to treat them as near absolutes and avoid short-term calculations of utility.

I wonder what other rights the anti-terrorist, anti-spree-killers would want to sacrifice in pursuit of a violence-free America?

Also, I really do need to read Snow Crash. I've heard it's excellent.

The Objectivist said...


You raise a good point about First Amendment exceptions. In the law, the First Amendment doesn't protect against.

Fighting Words
Clear and Present Danger
Child Pornography

I'm forgetting one. Anyway, I think these exceptions are probably best understood as cases where other property rights intervene. For example, clear and present danger speech is kind of like playing Russian Roulette with people in a crowded theater. Defamation is somewhat like using someone's trademark.

Others claim that the exceptions are cases where free speech doesn't lead to more truth, but to less of it in the populace.

I guess I don't see that property rights are as directly endangered by gun ownership by citizens (I'm unsure what to say about felons and the mentally ill).

The analogy here is that the right of free association should be near absolute because merely freely associating doesn't threaten harm to anyone.

By the way, I can't read the Asian posting. I wonder what it says.

The Constructivist said...

Just comment spam. I agree intent shouldn't cover generality of the right, which is why I brought up the possibility of "arms" someday coming to include personal DU firing hi-tech guns (as in Snow Crash) and the 1st Amendment restrictions: last I heard, "life" was a right guaranteed by the Constitution and if the kind of guns available today don't threaten it, I don't know what does. We limit the dangers of driving with a licensing procedure--what is so bad about doing the same with certain kinds of guns? I don't get your free association analogy as being more relevant than my free speech analogy.

The Objectivist said...

Dear C:
The Constitution provides a right to life, which means that the government cannot take life without due process. It does not guarantee life against private aggressors. In fact, it's a clear matter of law that there is no right against the police to protect a citizen.

The Objectivist said...

Dear C:

The notion that you should require a license to exercise a right is an attack on liberty. Would you support a requirement that persons get licensed to have children or to practice religion? Why not?

It might be a useful punishment for politically correct bad guys (e.g., deadbeat dads, hate-crime perpetrators, and tax avoiders) and for those we want to coerce into going back into school, drug-therapy treatment?

Note licensing might be necessary where identity is crucial to the activity (e.g., voting).

The Objectivist said...

Dear C:
The difference between freedom-of-speech and freedom-of-association analogies is that some exercise of the former are harmful (e.g., fraud, defamation, and causing imminent harmful activity), whereas the same is not true for freedom of association. The same is true for guns.

The Constructivist said...

O, on your last comment, please tell Homeland Security. In fact, I'd love to see you write a column on attacks on the right to free association and defend the claim that it's more absolute than even the right to free speech. Please be sure to address the following examples of free associations with not-so-potentially harmful results: Al Qaeda cell made up of U.S. citizens with aim to bomb the White House; KKK or other white supremacist group with aim to lynch; militia with aim to overthrow local government. In the history of the U.S. plenty of left wing groups have been surveilled and infiltrated and destroyed simply and few argued then the freedom to associate protected them. Please defend their rights, too. Or if you want to be more about the present, hasn't the Justic Dept. been releasing files about its spying on citizens' associations recently?

The Constructivist said...

Perhaps for another guns essay you'd also want to address Iraq. There's a place that's crawling with weapons and it's anarchy, not a libertarian paradise.

Turning to your second-to-last comment, any immigrant who wants to become an American citizen has to go through an extensive licensing system to be able to access, much less exercise, any rights that go with citizenship. The process is waived for those who are born in the States. So there's a presumption toward licensing built into the U.S. legal system, from 1790 on. There's a controversial post for you to write: the government doesn't have the right to limit access to rights of U.S citizenship with its unconstitutional licensing requirements for immigrants to achieve said citizenship.

Your notice of the voting exception to your anti-licensing stance makes me think of Malcolm X's "The Ballot or the Bullet." I would love to see you write an essay defending his argument on 2nd Amendment grounds!

I am glad to see you repudiate the eugenicists' efforts to license child-bearing early in the 20th C. Glad to see your libertarianism trumps your genetic determinism on that one. And I'll hold you to the no-religion-licensing position if and when, say, your immigration inspiration President Tancredo proposes it.

By the way, though, ever heard of a birth certificate? We do license and track kids already--so, assuming the right to have kids is in the 10th Amendment somewhere, isn't this a huge hole in your analogy? We're talking about licensing and tracking guns, only incidentally the people who purchase them.

The Constructivist said...

O, your point about right to life is crucial, so thanks for clarifying it for everyone. So if private hospitals and services want to provide abortion services, can the government declare that illegal constitutionally?

More to the point, I wonder if you're limiting the purpose of government more than Locke or the framers intended. Note the preamble to the U.S. Constitution lists liberty as only one of many reasons to create the USA:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

I'm less interested in arguing that the "insure domestic tranquility" clause authorizes licensing of guns than in suggesting that since the Constitution provides plenty of mechanisms for punishing private aggressors, why isn't mitigating the potential damage they can do with a reasonable gun licensing procedure prudent?

So were you joking when you said licensing requirements are fine for bad guys? Or would you defend the right of even convicted killers to buy guns w/o the need for a license after serving their time? And if you limit it for some, why not all?