Archive for the ‘individual right’ Category

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“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.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“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 would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Civic v. Individual right: a cost benefit analysis

As we well know, the Civic right interpretation states that the Second Amendment guarantee of a “right to keep and bear arms” is not divorcable from the “well-regulated militia”. In other words, the Second Amendment guarantees the institution set up under Article I, Section 8, Clauses 15 and 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The individual right interpretation holds that the right includes private purposes outside of the “Well-Regulated Militia”: such as self-defence and hunting. The text of the Second Amendment offers no support for these purposes:

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.

It is silent on personal gun rights, yet it does mention the necessity of a well regulated militia for the security of a free state.

Inclusio unius est exclusio alterius. In other words, concepts not mentioned in legislation cannot be inferred. therefore, one cannot assume that self-defence and hunting are covered by this right. Neither should one rely on them being covered by this right.

But, my point is not to argue this based upon text, but to argue it based upon utility of the right.

The concept of the militia is to create a citizen’s defence force. Or to quote Joseph Story:

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

This is not some hypothetical “unorganised militia”, but, again in the Words of Joseph Story:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

The militia has an element of compulsion and duty to it. It is an organisation that requires civic mindedness. It is a system which demands discipline and submission to the group. It isn’t doing whatever the fuck you please: fuck you, jack, I’m all right.

The individual right holds these concepts anathema. It demands the right without consideration of its costs to society. In fact, it is based upon a concept which runs contrary to the constitution: the insurrection theory. How can an institution which was created to “suppress Insurrections” foment them?

William Rawle succintly mentions something which is lost in this debate by those who demand the right without obligation to society:

This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.

There was a common belief that arms were to be used for society’s benefit to not its detriment. Or in the words of the “individual right friendly” Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.””The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This text places danger of public injury or harm as a reason for disarming the people despite its “individual right” tone. This is because bearing arms is not to be used for harm, but for civic benefit.

In addition, the cost of the individual right as a barrier to firearms regulation makes it into a mockery. This interpretation of the right is not a benefit to society, but a detriment. These are the costs related to medical care, mental health, emergency transport, police, criminal justice and lost taxes that result from the misuse of firearms.

The right, according to Story was to free society of the enormous military expenditure and prevent the ancilary usupation of freedom that accompanies such a build up. Or to Quote Eisenhower’s Farewell Address to the Nation:

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

The purpose of the Second Amendment is civic in nature, not individual. It is to protect society, not to protect the individual. It is to protect us from the military-industrial complex usurping our liberties. It has obligations and duties encumbent upon this right which are owed to society.

It was not to burden society with crime and injury due to misuse of firearms by those who keep them outside of the militia duty. It is to ensure the security of a free state, not “to be abused to the disturbance of the public peace.” “Real danger of public injury from individuals” is a reason to abridge this right for individuals.

The detriment to society of the “individual right” misinterpretation is far too costly a mistake to make.

Sorry, Mandatory Gun Registration Is Constitutional

I’ll link to this article since it is making its way into the search results

Funny, but this is nothing new to anyone who is familiar with the Heller Decision. In fact, I’ve been saying this from pretty early on (check my posts)! Of course, I’m “anti-gun” so nothing I say is true, which shows the gun cretins for the brainwashed fools they are. But it is fun to read things like:

Even some pro-gun scholars and advocates reluctantly agree. “I think under the Heller decision, registration would be constitutional,” Alan Gottlieb, founder of the Second Amendment Foundation in Bellevue, Wash., told CBSNews.com this week. “It doesn’t make it good public policy.”

and

“Registration is probably not unconstitutional,” says Don Kilmer, an attorney in San Jose, Calif. who has sued two California counties for denying law-abiding citizens permits to carry concealed weapons. “There’s a difference between registration as a permissible regulation and registration as good policy.”

But, I saw an interesting parallel to British Gun law where licensing was introduced and eventually this led to a registration scheme. In the US case, there is an “individual right”, but that is not infringed upon by registration. This allows for the nebulous mantra of “the Second Amendment guarantees an individual right”, yet it also allows for registration:

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

* * *
We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home.
-DC. v. Heller

Gee that’s a godsend to the gun control crowd who can now say “regulation is acceptable, but we can’t ban gun ownership”.

Now, the question is would incorporation to the States mean that something such as Idaho’s Constitutional right to arms, “No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition”, would be pre-empted by Federal law?

Be careful what you wish for, it may come true!

Collective right new???

This decision was from 1942, which would put it well before 1970 and says that the Second Amendment: was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.

That sounds pretty “collective” to me. Not only that it’s in pretty clear language that it was not adopted with individual rights in mind.

From U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942)

The Second Amendment to the Constitution of the United States provides: “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.”

The appellant’s contention is that if the statute under which this prosecution was brought is to be applied to a weapon of the type he had in his possession, then the statute violates the Second Amendment.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country, where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated militia protected by the Second Amendment.

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms “collective” and “individual” right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms–it’s scope). Saying that the right is collective and belongs to the States isn’t really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn’t come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can’t comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn’t really define what exactly was being protected. The State’s right to have militias? A personal right to own firearms outside of militia service?

That’s why the question that the Supreme Court allegedly was considering in Heller was:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Justice Stevens pointed out that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. Justice Stevens’s Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I paraphrase the dicta to make it comprehensible to modern minds as:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: “We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings.”

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a “reasonable relationship to the preservation or efficiency of a well regulated militia” at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was “no” for a multitude of reasons. The Heller court had other dilatory tactics if it couldn’t give the proper answer, but I digress…

The Founders came from the common law tradition and didn’t totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State’s legislative power, it was subject to the full scope of the state’s police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no “gun rights” in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan’s collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading “blackpowder” guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK’s Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don’t even bother to mention gun control. Maybe if someone wipes out an entire city

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by “gun rights” advocates to buttress their position:

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”
“The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of “defense of themselves” and “killing game” is mentioned. The problem is that the public can be disarmed for “unless for crimes committed, or real danger of public injury from individuals”. This raises a few questions in my mind such as how strongly are the private purposes protected in light of “real danger of public injury from individuals”. I believe that the fact that private purposes are mentioned in this passage, but aren’t in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. “Scribble Scrabble,” Cumberland Gazette, January 26, 1787; “Scribble-Scrabble,” ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge’s lawyer conceded that “every man has a right to possess military arms” and “to furnish his rooms with them.” Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge’s attorney argued “there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms.” Given this fact, it was indisputable that “in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime.” Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).


Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a “reasonable relationship to the preservation or efficiency of a well regulated militia” that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? “How will your militia be armed?”
Key words to clue you in: “subject to militia duty”, “Common defence”, security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is “no”, then this is a private use.
Key words to clue you in: “defense of his home, person and property”, family, hunting, recreational use, purpose of killing game, private use, etcetera.

Anyway, if one goes to the primary sources such as Patrick Henry’s comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.

or Patrick Henry’s “That every man be armed” speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot’s Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects…May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the “growing indifference to any system of militia discipline”

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an “individual right” we find a distinct civic tone. Why would one need “some organization” if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware’s from 1987, Nebraska’s from 1988, and the change in language between Idaho’s provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (right to keep and bear arms enacted 1988).

Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: “The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law.” Art. I, § 11.

I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.

A Layman’s Guide to Heller

By Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center. Professor Barnett is counsel on an amicus brief in Heller v. District of Columbia filed by the Academics for the Second Amendment. A condensed version of this piece was published in the Wall Street Journal on March 18th as “Gun Rights Show Down”.

A LAYMAN’S GUIDE TO HELLER

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context. (editorial note: I disagree with this since the Second Amendment should be interpreted as a unitary text within the Constitutional framework)

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Published Sunday, March 30, 2008 6:00 AM by Federalist Society

© The Federalist Society. All rights reserved.

Editorial comment: Opinions in this are not necessarily ones I share

Maybe an individual right isn’t that bad an idea!

I was in a preliminary hearing today where several gun charges were raised in relation to a drug dealer. For the most part, they were possession charges: such as not having a permit for a firearm. Now, the gun was in a place of business. Sure, the business was selling drugs, but he has to protect his business!

Amusing aside, there was the issue of a business card and I was imagining something along the lines of “Kwame Johnson: drug dealer to scumbags”.

Now, once an individual right is announced, these gun charges can be fought. In fact, they should be fought anyway since the State constitution provides: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. I mean what the hell is a law that prevents drug dealers from having guns doing on the books!?!?!?!?

More guns for criminals! More work for lawyers!

Yeah!

Heller: Individual right? Not so fast!

A literature teacher advised me that one should read a poem like it’s a love letter and go over every possible meaning of the words. Likewise, one should read a judicial decision, or the argument in this case the same way. Thinking about every possible permutation of the meanings. Which is why I am not so certain that they SCOTUS will find an individual right.

The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.

I should say that I worked with one of Justice Ginsburg’s clerks, Dan Z, in the mid-90s. That can give those in the know about DC’s gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.

I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on “reasonable” restrictions is a killer to any possibility of an individual right for several reasons.

First off, the Second Amendment reads:

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.

That’s “shall not be infringed” as Justice Stevens properly pointed out, not “shall not be reasonably infringed”. Gura’s and Clement’s conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We’ve had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?

This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says “the government can ban arms that are not appropriate for civilian use. There is no question of that.” Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.

The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.

All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn’t mean that he won’t find a collective right.

Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a “gimme” to Dellinger since Self-defence isn’t mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger’s tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a “Roe v. Wade” and find an extra-constitutional right to make the Second Amendment cover self-defence.

Dellinger’s tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress’s power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.

Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn’t really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).

OK, for those who have no idea of how appellate advocacy works, the Judges often take devil’s advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.

This is especially true if one takes J. Scalia’s comments about “well-regulated”. This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor’s tribunals/whatever you what to call them. Examples:

The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787

That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.

Article XIII of the Virginia Declaration of Rights.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security….What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen.”

Sure, this is “Monday Morning Quarterbacking” but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it’s a pretty short piece:

§ 1889. The next amendment is: “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.”

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Actually, this sounds more collective in its nature as the Second Amendment right is a system of “discipline” requiring “organisation”. This also mentions the issue of Standing army. Now, wouldn’t there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn’t as well versed in the proper literature to present his case and ends up with his dick waving in the wind.

But not as badly as Gura does in this excerpt:


But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That’s your answer.
JUSTICE BREYER: Well, you want to say yes, that’s correct, but I want to hear what the reasoning is because there is a big crime problem. I’m simply getting you to focus on that.
MR. GURA: The answer is yes, as Justice Scalia noted, and it’s unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 — that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver.

By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the “Collective Right” interpretation:

The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads “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.”

The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

Not the best thing for Gura to have pulled from his hat to support his case.

Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:

Well, these various phrases under the different standards that are proposed, “compelling interest,” “significant interest,” “narrowly tailored,” none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how these — how this restriction and the scope of this right looks in relation to those?
I’m not sure why we have to articulate some very intricate standard.

The problems is that comparing the First and Second Amendment is “comparing apples and oranges”. They are two different things and I snipped out CJ’s comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger’s favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

To summarise still yet more even yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State”, and the guarantee, the “right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered “surplusage”. The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:

“….After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ‘ 22-3204 (1981), possession of an unregistered firearm, id. ‘ 6-2311, and unlawful possession of ammunition, id. ‘ 6-2361….We now hold that D.C.Code ” 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant’s convictions….We agree with numerous other courts that ‘the Second Amendment guarantees a collective rather than an individual right.’….The purpose of the second amendment is ‘to preserve the effectiveness and assure the continuation of the state militia.’…. Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia’s desire and ability to preserve a well regulated militia.

Which gets to the coup de grace: The right “of the people”. Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term “people” is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase “the people” seems to be a term of art used in select parts of the Constitution, and contrasts with the words “person” and “accused” used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that “the people” refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my “we the people” comment.

Let’s analyze the word “people” in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let’s look at how the word “people” is used in the preamble of the Constitution. “We the People of the United States….do ordain and establish this Constitution for the United States of America.” It clear that the word “people” in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.

Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.

But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of ‘the people’ collectively rather than a right of ‘persons’ individually. And it uses a distinctly military phrase: ‘bear arms.’….The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment’s assembly clause, which textually abuts the Second Amendment, is the right of ‘the people’–in essence, voters–to ‘assemble’ in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to ‘the people’ in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.’ Here, the collective ‘people’ wording is paired with more individualistic language of ‘persons.’

Which takes us to this exchange between Gura and JJ. Scalia and Souter:

MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.
JUSTICE SCALIA: Which shows that maybe you’re being unrealistic in thinking that the second clause is not broader than the first. It’s not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the — but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it’s — it’s broader than the first clause?
MR. GURA: Well, we do acknowledge that, Your Honor.
JUSTICE SOUTER: Then why have the first clause? I mean what is it doing — I mean what help is it going to be?

And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: “Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?” I assume that J. Kennedy is referring to Article I, Section 8.

The major problem is that the individual right hinges on two things: one, the right of “the people” referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it’s not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don’t exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.

The real death blow would be that changing the interpretation from the current “collective right” to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.

I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura’s case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?