About a week ago, Robb over at Sharp as a Marble pointed to an op-ed by one Marc Rubin at the Examiner.com website that included this jaw-dropping quote:
In an earlier article about the 2nd amendment I proved beyond a shadow of any doubt that the 2nd amendment has nothing to do with an individual right to own a gun. And the facts are irrefutable.
Well, me being me, I saw that as a challenge and threw down the gauntlet.
And finally Sunday afternoon Marc Rubin responded via email:
Im(sic) sorry to have to tell you that you are simply wrong.The Constitution is not about what you or I or anyone believes. It is about what is says(sic) and what was intended by the people who wrote it especially when you know exactly what they intended. Nothing more.
The reality of this is that any state can pass any gun law they wish, banning, restricting, taxing, guns ammo, anything, and they do. That is irrefutable. Its(sic) there for all to see. The 2nd amendment does not prevent any state from passing any gun laws they wish. That is irrefutable because these laws are on the books. Plaxico Burress a former NY Giant wide receiver is going to jail because of a mandatory 3 year sentence for carrying a concealed weapon in New York City. The 2nd amendent(sic) is not saving him and his lawyers are not claiming his constitutional rights were violated. And the NRA isnt(sic) coming to his rescue either.
Yes my points are irrefutable because they are based on reality not belief or wish. The reality is the 2nd amendment has not stopped any local governemnt(sic), state, city, town or village from passing any gun law they wish. That doesnt(sic) sound like they think “shall not be infringed” applies to them. And thats(sic) because it doesnt(sic).
Apparently Mr. Rubin’s keyboard doesn’t have a functioning apostrophe. And his reality apparently shares very little in common with the one I live in.
Now, for those of you who have been long-standing readers of this blog much of what I will say here will be repetitious, but that’s necessary. For those of you who are new or relatively recent, I hope you will bear with my “Überpost” style – this stuff takes more than 1500 words to hammer home, but I provide links to the source materials to allow you to fact-check me and not just take my “authoritative word” on what I assert.
Let us begin:
Im sorry to have to tell you that you are simply wrong.
Right back atcha, Marc. In fact, to be as wrong as you are requires you to deliberately ignore or deny mountains of evidence. See below.
The Constitution is not about what you or I or anyone believes. It is about what is says and what was intended by the people who wrote it especially when you know exactly what they intended. Nothing more.
Close, but no cigar! Take, for example, your assertion: “Nothing more.” Not so. The Constitution has been amended seventeen times since the ratification of the Bill of Rights. Those changes have altered its meaning from what the Founders originally intended, but other than that, we’re in agreement – almost. Your assertion is a statement of what’s known as “Original Intent Theory” – but this theory of interpreting the Constitution has been found to be inherently difficult to apply and ultimately unusable.
Obviously, the Founders didn’t all hold one homogeneous intent that became each part of the Constitution, instead they wrote law, and in law it isn’t the intent that matters, what matters is what the words say and how they are understood at the time they were written. This is called “Original Understanding Theory.” There is a third, “Original Public Meaning.” All three theories carry the moniker of “Originalism,” but Original Understanding is the theory under which law is supposed to function, and it is the one most accepted by “Originalists” on the courts today. What was intended doesn’t matter. What it says is. See this article for a decent overview on the topic.
Of course, none of this affects judges who just make it up as they go along. More on this later, too. But the best example I can hold up for the difference between “original intent” and “original understanding” theory is the 1994 “Assault Weapons Ban” that wasn’t. We have been told ad nauseam that the intent of that law was to prohibit the manufacture and sale of “semi-automatic assault weapons,” itself a rather vague concept. The law did so by prohibiting certain features of these supposedly terrifying weapons: bayonet lugs, collapsible stocks, etc. So the manufacturers looked at what the law actually said and built firearms that met the restrictions. I happen to own one, an AR15 rifle that doesn’t have a collapsible stock or a bayonet lug. Works just like any other AR15 ever made, only better, since this one is equipped with a target-quality heavy barrel. I had it custom made right in the middle of the “ban.” I purchased a “stripped lower” – the “gun” part that carries the serial number, and shipped it to the manufacturer. About five weeks later my completed rifle was shipped directly to me at work. One hundred percent legal, no muss, no fuss.
So let’s say, for the sake of argument, that we’re both “originalists.” Where we differ is in how each of us interprets how the Second Amendment originally was understood. You claim that it “has nothing to do with an individual right to own a gun.” I disagree, and I believe I can prove it – irrefutably, and beyond the shadow of a doubt.
The reality of this is that any state can pass any gun law they wish, banning, restricting, taxing, guns ammo, anything, and they do. That is irrefutable. Its there for all to see. The 2nd amendment does not prevent any state from passing any gun laws they wish. That is irrefutable because these laws are on the books.
Here we agree on one thing – states do pass laws restricting the right to arms. I even agree that some of those restrictions are Constitutionally acceptable, but the overwhelming majority of them are not. Yours is a trite argument, as states have passed a lot of laws that violated the Constitution and they remained on the books for decades before being struck down. Why should gun laws be exempt from this abuse? It’s irrefutable that the laws exist, but hardly irrefutable that they don’t violate the Constitution.
Plaxico Burress a former NY Giant wide receiver is going to jail because of a mandatory 3 year sentence for carrying a concealed weapon in New York City. The 2nd amendent is not saving him and his lawyers are not claiming his constitutional rights were violated. And the NRA isnt coming to his rescue either.
The question, again, isn’t whether the laws have been passed and are being applied, but whether or not those laws pass Constitutional muster. Just because the NRA isn’t fighting for Plaxico Burress’s right to carry a concealed weapon without a permit doesn’t mean that law is or isn’t Constitutional (and you might be surprised to learn that I believe the evidence shows that such laws can be Constitutional – based on Original Understanding theory). That doesn’t mean that Plaxico Burress didn’t have a right to own the gun he was carrying that day, and that is the topic of this discussion.
Now, let’s take on your “irrefutable” article, starting with this jewel:
(J)ust the other day the 9th Circuit Court of Appeals ruled in a case involving Alameda County in California that the 2nd amendment applies to individuals.They were wrong.
Good to know that you acknowledge that even high court judges can be wrong. They weren’t here, but I’d have to prove that. You, being an “authorized journalist” get to just assert it as irrefutable fact and go on. We’ll skip directly to your bold assertion:
“There is no Constitutional right to own a gun.And there never was.”
There’s a human right to own weapons suitable for defense of self and property, and the Second Amendment of the Constitution was written to protect that right against violation by government. I assert that, but I have a citation – U.S. v Cruikshank (1876). While the majority in this case erred in their decision, their understanding of the Bill of Rights was flawless:
The first amendment to the Constitution prohibits Congress from abridging “the right of the people to assemble and to petition the government for a redress of grievances.” This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, “the scope and application of these amendments are no longer subjects of discussion here.” They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.
The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.
The second and tenth counts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes . . . .
You see, the majority in Cruikshank well understood what the Bill of Rights protected, but they decided those right couldn’t be protected for recently emancipated slaves or previously free blacks. That didn’t comport with their understanding of “Original Intent” – even though it was the only meaning that could be taken from the words. This is the case that allowed the states to enact whatever gun control laws they wanted, even though the Fourteenth Amendment was ratified in 1868 specifically with the intent of protecting the rights of all citizens. This is called, variously, “making it up,” “judicial activism,” or (my personal favorite) “Constitutionalizing ones personal preferences.” So, in 1876 the Supreme Court named what the Second Amendment protected – “bearing arms for a lawful purpose” – then declared that the states could violate that right without censure (*nudge-nudge, wink-wink*, as long as they did it to the wrong kind of people).
This echoed the ante-bellum Scott v. Sanford decision where the majority opinion declared that blacks, free or slave, couldn’t be citizens because if they were they would share the same rights as whites, and kindly listed those rights that they must be denied:
It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
“Keep and carry arms wherever they went.” Citizenship would convey upon blacks the right to travel, to associate with anyone they wanted, the right to free speech, the right to assemble, and the right to keep and carry arms wherever they went – just like white men. Oh, and if you’ll note – there’s no mention of militia membership in either of those two decisions, both well less than a hundred years after the ratification of the Bill of Rights.
Then we fought a war, in no small part to determine just who was and who wasn’t a citizen, and afterward we passed the Thirteenth Amendment to settle that question, and the Fourteenth Amendment to reinforce the idea that their rights were protected too.
But nine men sitting on the Supreme Court decided that those words couldn’t mean what they said.
Just like you do.
How does it feel to be exposed as a bigot, Marc?
Next, your restatement of your “Original Intent” argument:
People ignorant of the Constitution which unfortunately includes the President, along with many members of Congress and the press, seem to refuse to read the 2nd amendment as it was written. And to acknowledge that the Constitution and the people who wrote it and founded this country were the greatest collection of geniuses in the principles of self government this country ever had at one time in one place. When you acknowledge that, then you take the words they wrote and argued over, debated and ratified in the Constitution seriously. And you don’t try to pretend they mean something they were never intended to mean to suit your purposes. They knew what they were doing. They knew what they were saying. And they knew what every word of that amendment meant ( as well as everything else in the Constitution). And every word in the 2nd amendment means the same thing today that it meant in 1789 and in all the years in between.
I’ve emphasized the crucial parts of your argument. They’re what this whole debate hinges upon. Thanks for making that clear – it makes my job much easier, since I just proved that the justices on the Dred Scott court, and the justices on the Cruikshank court knew precisely what rights the Bill of Rights protected and that they were deliberately denying to blacks.
Now, on to your “evidence”:
The fact that the 2nd amendment has nothing to do with an individual’s right to own a gun is not a secret. Former Chief Justice Warren Burger, Chief Justice during Nixon’s term wrote that “the idea that the 2nd amendment has anything whatsoever to do with an individual’s right to own a gun is the biggest Constitutional hoax ever perpetrated on the American people”.
I note you didn’t give a link to the source of that quote, and I have to wonder about that omission. I’ve never seen that particular version before, but I have seen similar assertions made by Burger. One I’m familiar with was a bit stronger than “hoax”:
“[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
— Former Chief Justice Warren Burger, The MacNeil/Lehrer NewsHour, December 16, 1991
I can assume that Burger didn’t make the statement you quote in a court decision or even a dissent. During his time on the Court, Burger never heard a case on the Second Amendment, nor, according to Dave Kopel, “did Mr. Burger write anything about the Second Amendment in scholarly legal or historical journal(s).” Kopel adds as an aside, “The scholarly consensus is virtually unanimous that the Second Amendment guarantees an individual right.” (More on that later, too.)
Burger apparently did a lot of gun control campaigning after his retirement in 1986, since he also gave an interview for the January 14, 1990 issue of the Parade Magazine Sunday insert. What did Chief Justice Burger have to say in that Parade interview? The web site “Gun Cite” has archived the entire piece. You were apparently unaware or at least neglected to mention that the Chief Justice also said this:
The Constitution of the United States, in its Second Amendment, guarantees a “right of the people to keep and bear arms.” However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen.
People of that day were apprehensive about the new “monster” national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment’s guarantees — against “establishment of religion,” “free exercise” of religion, free speech and free press — came a guarantee that grew out of the deep-seated fear of a “national” or “standing” army.
We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee.
Some have exploited these ancient concerns, blurring sporting guns – rifles, shotguns and even machine pistols – with all firearms, including what are now called “Saturday night specials.” There is, of course, a great difference between sporting guns and handguns.
The victory at Yorktown – and the ratification of the Bill of Rights a decade later – did not change people’s attitudes about a national army. They had lived for years under the notion that each state would maintain its own military establishment, and the seaboard states had their own navies as well. These people, and their fathers and grandfathers before them, remembered how monarchs had used standing armies to oppress their ancestors in Europe. Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats — and dueling.
Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate — basing the right on the necessity for a “well regulated militia,” a state army.
In the two centuries since then — with two world wars and some lesser ones — it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a “militia” by way of the National Guard, which can be swiftly integrated into the national defense forces.
Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing — or to own automobiles. To “keep and bear arms” for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; “Saturday night specials” and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.
Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.
Now, as I read those assertions, the ORIGINAL UNDERSTANDING of the Second Amendment was to protect an individual right to “a rifle and a powder horn” to protect against the threat of standing armies used to oppress them. As he says, “That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee.”
But the word “because” isn’t there. And you yourself assert “They knew what they were doing. They knew what they were saying. And they knew what every word of that amendment meant.” But apparently Warren Burger knows better, and because you agree with him, well, he must be right!
Burger’s argument was against the right to possess handguns specifically. Burger further asserts that the nature of the right has changed over time, evolving to protect its original intent – the “right to defend (our) homes,” AND “the right of hunters to own and keep sporting guns for hunting game.” Wait, what? The Second Amendment says nothing about “sporting guns” or “hunting game.” Where did the Chief Justice come up with that idea? I thought Warren Burger had a reputation as a “strict constructionist”!
I thought we agreed that “every word in the 2nd amendment means the same thing today that it meant in 1789 and in all the years in between“? Doesn’t that make Warren Burger wrong? He disagrees with both the 1856 Dred Scott court and the 1876 Cruikshank court. You see, Chief Justice Burger just expressed the “living document” argument, but you and I are originalists!
After all, you wrote:
There is a philosophical approach in applying the constitution that ironically enough is the conservative approach and it’s called “original intent”. Where the original intent of the framers is known and is clear, where their words and what they meant and intended are clear, there can be no other interpretation of a particular clause, provision, article or amendment other than what the framers meant and intended. Nowhere is that clearer than in the second amendment.
Argument refuted. And will be again.
Now we’re going to analyse the twenty-seven words in the Second Amendment, looking for that missing “because.” You argue:
And while there are many, many ways to prove the 2nd amendment has nothing to do with an individual’s right to own a gun (all of which I will provide), all it really takes to understand the amendment is what you were taught by Mrs. Applecheeks, your 4th grade English teacher when you learned how to conjugate a sentence with a subject and a predicate. The subject of that sentence, and therefore the amendment, is ” a well regulated militia” not “the right to bear arms”. The subject is the militia and the modifier is “necessary to the security of a free state” which is the purpose of the amendment.
This thought experiment has been carried out by a much more august authority on the English language than you, sir, or Mrs. Applecheeks. Also in 1991, perhaps inspired by Warren Burger’s missing “because,” J. Neil Schulman asked Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style: The Consensus to analyse the amendment. Here is Professor Copperud’s expert conclusion:
After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the follow analysis (into which I have inserted my questions for the sake of clarity):
[Copperud:] “The words ‘A well-regulated militia, being necessary to the security of a free state,’ contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying ‘militia,’ which is followed by the main clause of the sentence (subject ‘the right’, verb ‘shall’). The to keep and bear arms is asserted as an essential for maintaining a militia.
“In reply to your numbered questions: [Schulman:] “(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to ‘a well-regulated militia’?”
[Copperud:] “(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.”
[Schulman:] “(2) Is ‘the right of the people to keep and bear arms’ granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right ‘shall not be infringed’?”
[Copperud:] “(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.”
[Schulman:] “(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement ‘the right of the people to keep and bear Arms, shall not be infringed’ null and void?”
[Copperud:] “(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.”
[Schulman:] “(4) Does the clause ‘A well-regulated Militia, being necessary to the security of a free State,’ grant a right to the government to place conditions on the ‘right of the people to keep and bear arms,’ or is such right deemed unconditional by the meaning of the entire sentence?”
[Copperud:] “(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.”
[Schulman:] “(5) Which of the following does the phrase ‘well-regulated militia’ mean: ‘well-equipped’, ‘well-organized,’ ‘well-drilled,’ ‘well-educated,’ or ‘subject to regulations of a superior authority’?”
[Copperud:] “(5) The phrase means ‘subject to regulations of a superior authority;’ this accords with the desire of the writers for civilian control over the military.”
[Schulman:] “(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.”
[Copperud:] “To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.’
[Schulman:] “As a ‘scientific control’ on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,
“A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.’
“My questions for the usage analysis of this sentence would be,
“(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment’s sentence?; and
“(2) Could this sentence be interpreted to restrict ‘the right of the people to keep and read Books’ _only_ to ‘a well-educated electorate’ — for example, registered voters with a high-school diploma?”
[Copperud:] “(1) Your ‘scientific control’ sentence precisely parallels the amendment in grammatical structure.
“(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.”
You are invited to read the entire piece, but that’s the gist of it – “The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.” (Confirmed by Dred Scott) Further, “The right is not granted by the amendment; its existence is assumed. (Confirmed by Cruikshank.) The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.” And, finally, “To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment.”
Argument refuted. You might want to console Mrs. Applecheeks.
The 2nd amendment is about giving the states an absolute right to have their own armed militias which today has been transformed into the National Guard.
Wrong again. The National Guard, sir, is under FEDERAL authority. As you have noted, many such units are now stationed in Iraq and Afghanistan, and they aren’t equipped, supplied by or under the orders of their State governments. Also, the militia has been legally defined for quite a while now by Title 10, Subtitle A, Part I, Chapter 13, §311 of the U.S. Code:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
One could argue under age and sex-discrimination laws that the limits on membership in the unorganized militia are illegal, but that’s the law. Every “able-bodied” man between 17 and 45 is a member of the “unorganized militia.” No membership in a National Guard outfit is required, unless you’re female. Several of the states have similar laws. I was a member up until two years ago, and consider myself one still.
This is off-topic but:
It also guarantees that the states have the right to have the same weapons as a federal army, a right in existence today and has always been, since the National Guard of every state does have most of the same weapons that the Federal army has. National Guard units have tanks, they have fighter jets. They have bombers.And it’s why National Guard units have been fighting in Iraq since 2002. The 2nd amendment guarantees the right of the states to have them. It is also what allowed the states of the Confederacy to have the weapons to fight a Civil War.
So by your “originalist” interpretation of the Second Amendment, Arizona can have its very own nuclear, biological and chemical weapons under the control of Gov. Brewer? Cool! Can we nuke California?
If you think the amendment gives an individual the right to have those weapons try putting a tank in your backyard.
I’d like to introduce you to armyjeeps.net where you can purchase a M3A1 Stuart light tank, an M75 Armored personnel Carrier, an M8 APC, a Fox recon tank, and many other vehicles of the type. There’s also the International Repo-Depo, Inc. which has Soviet BMP-1 armored personnel carriers for sale to the public. There are people who collect these things and enjoy driving them around. Of course there’s restrictions on the guns these things originally carried, but if you want functional artillery, it’s still available. For example, muzzle-loading black-powder cannon are essentially unrestricted. Breech-loading stuff is restricted, but still available if you have the money and patience to jump through the hoops. But is your right to these weapons “infringed”? Well, we have to go back to that “Original Understanding” argument, don’t we?
Now we get to the “deliberate mendacity” segment of your “irrefutable” article:
For those who don’t know there are two types of rights enumerated in the Constitution, states rights and individual rights. As any Constitutional scholar will tell you, when the Framers were referring to a state’s right they used the term “the people:”. When they were referring to an individual right, they used the word “person”.
“Any Constitutional scholar” eh? Care to cite one or six? Frankly, I’m awed by the chutzpah it took to commit that paragraph to the historical record. Let’s look at the First Amendment, shall we?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
So, according to your anonymous Constitutional scholar(s), “the right of the people peaceably to assemble, and to petition the government for a redress of grievances” is a “State’s Right”? Funny, the Supreme Court has never interpreted that clause that way. The Court in Dred Scott certainly didn’t, nor did the Court in Cruikshank.
How about Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So the “right of the people to be secure in their persons, houses, papers and effects” is a “States Right”?
You’re either badly educated, badly deluded, or mentally incompetent in order to believe what you wrote above. Otherwise what you are doing is deliberately lying. I’ve already stated which of those I believe.
I will name Constitutional scholars. Here’s one you might have heard of: Laurence H. Tribe, professor of Law at Harvard University and author of the law textbook American Constitutional Law that most ConLaw classes in this country use. On the Second Amendment, Professor Tribe writes in the 1988 Second Edition of his textbook:
Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.
(My emphasis.) That book is not available on-line, I’m afraid. You’ll either have to take my word for it, or go look it up in a local law library, though UCLA Law Professor Eugene Volokh quotes it here. I see no mention of “states rights” in that conclusion, do you? But Professor Tribe is quite explicit that the Second Amendment protects a right of individuals to possess firearms.
Or how about Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University:
In one corner, gun controllers embrace a narrow, statist reading, insisting that the amendment merely confers a right on state governments to establish professional state militias like the National Guard or local SWAT teams. No ordinary citizen is covered by the amendment in this view. In the other corner, gun owners and their supporters read the amendment in a broad libertarian way, arguing that it protects a right of every individual to have guns for self-protection, for hunting, and even for sport. Virtually nothing having to do with personal weaponry is outside the amendment on this view. Both readings are wrong.
The statist reading sidesteps the obvious fact that the amendment’s actual command language — “shall not be infringed” — appears in its second clause, which speaks of “the people” and not “the states.” A quick look at the Tenth Amendment, which draws a sharp distinction between “the states” and “the people,” makes clear that these two phrases are not identical and that the Founders knew how to say “states” when they meant states. What is more, the eighteenth-century “militia” referred to by the first clause was not remotely like today’s National Guard. It encompassed virtually all voters — somewhat like today’s Swiss militia — rather than a small group of paid, semiprofessional volunteers.
By now it is evident that we need to understand how all the words of the amendment fit together, and how they, in turn, mesh with other words in the Constitution. The amendment’s syntax seems odd only because modern readers persistently misread the words “militia” and “people,” imposing twentieth-century assumptions on an eighteenth-century text. The key subject-nouns were simply different ways of saying the same thing. At the Founding, the militia was the people and the people were the militia. Indeed, the earlier draft of the amendment linked the two clauses with linchpin language speaking of “a well regulated militia, composed of the body of the people.” The stylistically clumsy linchpin was later pulled out, but the final version makes the same point in fewer words. A modern translation of the amendment might thus be: “An armed and militarily trained citizenry being conducive to freedom, the right of the electorate to organize itself militarily shall not be infringed.”
Do you see any reference there to “State’s Rights”? Yet your assertion that “The people” means “the States” is crucial to your “irrefutable” argument, and Professor Reed has exposed you as not only a bigot, but a Statist.
Or how about Sanford Levinson, Glenn Reynolds, Eugene Volokh, Robert Cottrol, . . .
Now we get to the meat of your mendacity:
Unfortunately for President Obama, Lou Dobbs, Joe Lieberman and others in congress and the media who badly and ignorantly misuse the phrase, “to keep and bear arms” doesn’t mean the right of an individual to own a gun.At least not in terms of the Framers intended with the 2nd amendment. It doesn’t mean the right to go hunting or take target practice or to shoot an intruder. It has nothing to do with an individual’s right of self-defense (though it doesn’t speak against it either). And it didn’t mean the right to strut down the middle of Dodge City wearing six guns. If it did Wyatt Earp wouldn’t have been able to arrest anyone who did and confiscate their guns because Earp banned them from Dodge City and no one ever accused Wyatt Earp of violating the Constitution.
First the term “arms” meant something very specific to the Framers who wrote the 2nd amendment in 1789 and it meant the same thing to them as it means now and that it has meant all through history.
The word “arms” in the 2nd amendment means one thing and only one thing. And it doesn’t mean the right to have a gun you have in your house. It means weapons of war. Military weapons of war.
What do you know, we agree again!
The “right to keep and bear arms” means that the Constitution is guaranteeing the states not only the right to have their own militias or military, but the right to “keep” their own weapons of war. “Arms” didn’t just mean guns. It meant cannon. It meant swords and bayonets, cannon balls, powder, even war ships. “Arms” meant anything that could be used as a weapon of war. And it guaranteed the right of the individual states to have any weapons they wished, including the same military weapons as the Federal army. That guarantee is made clear in the last clause. As everyone knows there is a big difference between someone who owns a gun store and someone who is an “arms” dealer.And arms dealer is in the business of selling military weapons.
In case you were not aware, private individuals owned swords and bayonets, cannon, cannon balls, powder and even warships – you have heard of “privateers,” have you not? Privately owned cannon-armed ships, manned by sailors possessing flintlock weapons, swords, hatchets, and bayonets, outnumbered government-owned ships by over 26-to-1 during the Revolutionary War, though being armed merchantmen, they were heavily outgunned by actual warships. Still, quantity has a quality all its own, as they say. We were still using privateers into the Civil War.
Argument refuted. Next!
But the meaning of the word “arms” isn’t the only thing in the 2nd amendment that people get wrong. They also don’t know the meaning of the term ” to bear arms” which also had a very specific meaning to the Framers in 1789.
“To bear arms” didn’t mean to show them off. It didn’t mean to go hunting or to use them to defend against a burglar despite what Lou Dobbs,President Obama and some Constitutionally challenged Congressmen think. “To bear arms” meant only one thing to the Framers It meant to go to war.
Wrong again! You’re batting 1,000! Though Professor Amar does agree with you, many many more do not. Here’s where the problem of “original intent” versus “original understanding” becomes significant. How can you assert that the intent of every one of the Founders, or even a majority, was that “to bear arms” meant specifically and exclusively “to go to war”? I want to see your evidence. I assert you cannot provide it.
But I can refute your argument. Remember, in science any hypothesis can be disproven by a single piece of contradictory evidence. Professor Volokh provides two examples of contemporary understanding of the phrase “bear arms” with non-military meaning:
Two More Early References to the Right To Bear Arms, in 1816 arguments to a jury. The first is by defense lawyer Joseph Reed Ingersoll, who would eventually become a prominent Congressman:
I think it is apparent … [t]hat after the attack, and threats, and the avowal of an intention of the part of captain Carson to take away his life, he had a right to bear arms on the plainest principles of self-defence….
Having the right of access to the house, he was justifiable in protecting himself by the only means which reduce the powerful to a level with the weak. The constitutions, both of the Federal government and of the commonwealth of Pennsylvania, secure to every citizen, the right to bear arms, and the only question that remains, is whether the exercise of the right be compatible with disretion.
The second is by another defense lawyer, William Rawle, a prominent early American lawyer who would nine years later write a treatise that likewise supported the individual rights view of the right to bear arms and of the Second Amendment:
There is only one circumstance remaining worthy of notice; that of arming himself. The constitution of this state has expressly secured the right to carry arms. In Art. IX, Sect. XXI, “the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.”
The right, in defence of the state is, where foreign invasion occasions it to be in danger; that of defence of themselves continues through their lives, and, therefore, there is not any thing in opposition to Richard Smith’s bearing arms, not against the officers of the law, but against the lawless attack of an individual he had to fear. If, in a conversation with another, attacked by him, he had caught up and fired that pistol, in fear of his person suffering great bodily harm, the law would have considered it as excusable homicide. Does his carrying that pistol, after Carson’s previous attempt on him, for self defence, make him culpable? No — the constitution allows it, especially when the assistance of the magistrates could not be obtained; it follows, that the use of this pistol was not unlawful when accompanied with these circumstances. Suppose he had been taken up for carrying a pistol in his bosom, and upon complaint being made to some of the learned magistrates, he had defended himself, by saying, he carried it in fear of his life; or were to say even, I do not carry it — it is in my chamber — the judge would answer, pursue, uniformly, the same conduct; you are perfectly justifiable, and have a right to be armed in your own defence.
(My emphasis.) In 1816 – just twenty-five years after ratification of the Bill of Rights, and “to bear arms” was understood to mean “carry firearms” for the purpose of self defense. And, Chief Justice Burger notwithstanding, with a pistol.
There are many, many more examples, but this piece is already very, very long. I’ll just say,
Argument refuted. Next!
The Founding Fathers in the 2nd amendment guaranteed the right of the individual states not only the means but the right to go to war and defend themselves both against the possibility of a future President deciding to become a tyrant and using military force to give himself dictatorial powers, or to defend themselves against a foreign enemy that might invade the shores of New York, Massachusetts, or New Jersey. It guaranteed that the states had both the means (” the right to keep…”) and to use them, (to “bear arms”,)to defend themselves without having to depend on a Federal Army to do it for them or against a Federal army itself if that became “necessary to the security of a free state”.
If the Founding Fathers had intended the 2nd amendment to be about the right of an individual to own a gun they would have said so.And they didn’t.
Only in your fever-dreams. I’ve already demolished your arguments to this point, so I’ll simply quote from one of my favorite dissents to address your ludicrous assertion that the 2nd Amendment “guaranteed the right of the individual states not only the means but the right to go to war and defend themselves both against the possibility of a future President deciding to become a tyrant and using military force to give himself dictatorial powers, or to defend themselves against a foreign enemy that might invade the shores of New York, Massachusetts, or New Jersey.“
The Ninth Circuit Court of Appeals is one of those that declared the Second Amendment didn’t protect an individual right. California took that declaration to heart. In 2003 the Ninth Circuit repeated that mistake, and denied the re-hearing of the California case Silveira v. Lockyer. Judge Andrew Kleinfeld dissented from that opinion most eloquently, addressing your arguments. His dissent was joined by four others on that court. Here’s the pertinent part:
The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”
Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.
The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as “bear,” which itself means only to carry arms as part of a military unit.
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.
You, Mr. Rubin, are fertilizing that weed with the manure you published in your “irrefutable” column.
One more bit from that dissent:
The panel’s holding that the right of “the people” with respect to weapons “was not adopted in order to afford rights to individuals” but only so that “they would have the right to bear arms in the service of the state” is logically absurd. This becomes clear if one interprets the phrase “the people” consistently, as sound construction always requires, and applies the same construction to other amendments. The First Amendment preserves “the right of the people peaceably to assemble.” The panel’s construction implies that no individual can sue in court for an abridgment of his or her right to assemble, because the right is reserved to the people acting collectively. The Fourth Amendment preserves “the right of the people” to security from unreasonable searches and seizures. The panel’s construction implies that no individual has a right enforceable in court to be free from unreasonable search and seizure, only “the people” as a collective. Because “the people” act collectively through their governments, the panel’s logic suggests that the right to free assembly and the right to be free from unreasonable searches and seizures are protected only when people are acting, in the panel’s phrase, “in the service of the state.” That is not our country.
It might be your country, Mr. Rubin, but it’s not mine.
Argument refuted. Next!
The final clause could be the most important because it impacts every gun law on the books. The clause says the right granted in the 2nd amendment “shall not be infringed”.
“..shall not be infringed” means just that. It doesn’t mean ” shall not be infringed except sometimes..”: or “shall not be infringed unless we want it to be”, or “shall not be infringed unless we decide there is a good reason to infringe upon it”. It means the right granted in the 2nd amendment cannot be diminished, restricted, reduced, or encroached upon in even the smallest way.
We all know what “fringe” means and where the fringe is — on the outer edges of something. And the amendment makes clear you cant encroach upon the right granted in the 2nd amendment even there, on the fringe.
Really? The First Amendment begins with the strict admonition “Congress shall make no law . . .”, yet Congress has made many, many laws concerning speech, assembly, worship, etc. The question comes in whether or not those laws establish religion or abridge the other rights protected by the First Amendment. And it is the same for the Second. Are the laws that have been passed “infringements”? Now, I’m with you to a point – “infringement” is a very, very strict yardstick to measure against, but you must remember that the (very bad) Cruikshank decision is the one that allowed the Several States to “infringe” to their heart’s content, safe from Federal overview. The FEDERAL government, you will note, has passed very few gun control laws, most of them justified in terms of the commerce clause.
Argument refuted. Next!
The 2nd amendment is only about a state’s right to have its own army and for that army to have any weapons it chooses, and that the Federal government cannot interfere with that right in any way. And that has been the case since 1789.It has never applied to an individual.And was never intended to.
Again, so the state National Guard units can have chemical, biological and nuclear weapons and the Federal government has no say? Really? You believe that?
No, the Second Amendment was about the right of individual citizens to possess individual weapons of military usefulness – essentially infantry weapons; rifles, shotguns, knives, bayonets, swords and pistols in order to have an armed populace that could form a militia if called upon. Remember, it was the standing army that was feared, and it didn’t matter whether than army was Federal in nature, or was a creature of the state government – standing armies oppressed the people. Militias were “the people,” and the best protectors of their own rights.
Argument refuted. Next!
If the 2nd amendment had anything to do with an individual’s right to own a gun,the clause. “shall not be infringed” would make every single gun law on the books, and any restriction of any kind unconstitutional. The NRA knows this and knows both the “infringement” clause and the entire amendment has nothing to do with an individual’s right to own a gun. Otherwise they would have challenged gun laws a long time ago on the grounds they violated the “infringement” clause of the 2nd amendment.
New York city’s concealed weapon law is a perfect example. You cannot carry a concealed gun in New York city unless you are issued a permit by the police department. Just the requiring of a permit would certainly be an “infringement” of a 2nd amendment right “to keep and bear arms” according to the Constitution if it related to individuals. But even more than that, 90% of the people who apply for the permit get rejected. You don’t get the permit unless the police department decides you can have one. And they decide most can’t.
Bzzzt! Cruikshank! Remember, Cruikshank said the Second Amendment was only a restriction on Congress, and thus we have a patchwork of laws that vary from state to state, state to city, and city to county all across the nation. New York is free to infringe on the right to arms because Supreme Court precedent says it can.
Of course, Supreme Court precedent also said “separate but equal” was OK, too, until it didn’t anymore. Brown v. Board of Education really pissed off the bigots. So did D.C. v. Heller. Did Heller make you angry, Mr. Rubin?
That doesn’t sound like a Constitutional right “to keep and bear arms” that hasn’t been infringed upon to me.
Me either. The difference is, I see it for what it is – another in a long line of violations of the right to arms dating back to the Civil War. You think it’s the way things ought to be.
And if you are thinking “what about the DC gun ban and the Supreme Court decision”, even before it had been decided, constitutional experts and lawyers knew it had nothing to do with the 2nd amendment because DC is a special case and whatever the Supreme Court decision was going to be, it wouldnbt impact the 2nd amendment debate. DC is not a state. DC is essentially funded by Congress. They don’t even have a say in the election of the President. They stand outside anything that refers to states rights in the Constitution because it is not a state and the 2nd amendment is a states right issue, not an individual rights issue. The DC ban against hand guns ( which Obama was for before he was against) didn’t decide any 2nd amendment issues.
More deliberate mendacity on your part, Mr. Rubin. Alan Gura, the lead counsel in Parker v. D.C. which became D.C. v. Heller chose the District of Columbia very carefully, specifically because DC is not a state and is “essentially funded by Congress.” Because of these facts Cruikshank doesn’t apply to DC. The Second Amendment does. And if you read the decision, it was argued and decided on the merits of whether or not the Second Amendment protects an individual right.
And the majority repudiates your “irrefutable” argument. In fact, even the four Justices in the minority concur that the right protected is an individual one, they just give that protection no meaning.
As far as the recent decision by the 9th Circuit Court of Appeals regarding Alameda County in California, that ruling should come as no surprise. And it is not definitive. The 9th Circuit is the most liberal court in the country and only the most liberal interpretation of the 2nd amendment, one that completely disregards the original intent of the Framers and what the words actually mean, could choose to give the term ” to keep and bear arms” such a broad meaning and one completely unintended by the Framers. In fact the only way to apply the words in the 2nd amendment to an individual is to completely disregard what the words were intended to accomplish, which is what conservatives usually complain is legislating from the bench.
If I thought you had chutzpah before, I was not prepared for this.
The Ninth Circuit is, by far, the most liberal (and overturned) Appeals Court in the country, but its Second Amendment decisions go back to the 1996 Hickman v. Block decision that judge Kleinfeld protested against in his Silveira dissent. Hickman was followed by the original Nordyke v. King (2000) and Silveira v. Lockyer (2002) which both lost based on the precedent of Hickman. But after Heller, plaintiffs appealed Nordyke v. King, on the new understanding of the Second Amendment as protecting an individual right, and (while the Court upheld its previous decision) it went further to express its belief that the Fourteenth Amendment DOES incorporate the Second Amendment to the states. If the Supreme Court hears Nordyke (doubtful) they will have to take this question up. Regardless, there is a suit now against the city of Chicago over its handgun ban that is also based on Fourteenth Amendment incorporation, and it has a much better chance of going before the Supreme Court.
New York can come later.
OK, there’s my 10,000 words, not that I expect you will actually read them. But if you do, I await your response with bated breath.
UPDATE – 7/22/09: I don’t think I’ll be hearing from Mr. Rubin any time soon.
He does live in his own little world!