The Right To Keep And Bear Arms – An Analysis of the Second Amendment
When it comes to the Second Amendment and gun control, both sides have it wrong. A careful review of the case law shows more ambiguity than legal precedent. Because emotions run so high in both camps, little rational discourse has taken place on the issue. Below I offer my analysis of the existing case law and historical background to “the right to keep and bear arms.”
The Constitution and the contemporaneous written documents from the period use three distinct words when discussing the subject of military power: “Army” (or sometimes “Standing Army”), “Militia”, and “the People.” On 23 March 1775 the Continental Congress debated the use of the militia. It resolved “that a well regulated Militia, composed of Gentlemen and Yeomen, is the natural strength and only security of a free Government…”
In further defining the difference between a regular army and an armed citizenry, Alexander Hamilton wrote in Federalist 29, “if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
As noted by SCOTUS in US v. Miller (1939), "the significance attributed to the term Militia appears from the debates in the Constitutional Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected bearing arms supplied by themselves and of the kind in common use at the time. . . . In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defense.”
It cannot be doubted that the early Americans were highly distrustful of organized bodies of armed men, especially if they were in the employ of the Federal Government. It must follow, therefore, that a permanently staffed militia (such as the modern National Guard), although in the employ of the states, would comprise in the minds of the Founding Fathers, a body of professional soldiers.
Given that Article 2, Section 2 gives the President the power to call the militia into the service of the country (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”) it must also follow that the use of the term “people” in the Second Amendment was meant to act on individuals, not collective units, just as Hamilton said in Federalist 23, “we must extend the laws of the federal government to the individual citizens of America.”
Let us examine the logic of this conclusion. It is not in question that the Founding Fathers believed there was an absolute right for the citizens to be able to oppose efforts to curtail their liberties (c.f. the Declaration of Independence “…when a long train of abuses and usurpations evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government…). If only standing armies and permanent militia units (which, as noted above, could be forced into the service of the government) were legally allowed to possess arms, it would be next to impossible for the citizenry to exercise that right. There would necessarily be some body of men, not attached to either force, trained in the use of arms that was “officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” (James Madison, Federalist 46) This must lead us to the conclusion that there was a right, though not absolute, for individuals to own certain weapons.
In Miller, the government argued a “collective rights” theory to attempt to overcome this logical conclusion. This argument held no weight with SCOTUS. “Had the Court accepted the government's interpretation of the Second Amendment, the case would have likely been disposed of on the issue of standing. This is because the defendants were not members of militias, and under the government's interpretation of the Second Amendment, the Court could have found that Jack Miller had no standing to invoke the Second Amendment in the district court.” (Brannon Denning, 1996)
Despite this, the notoriously liberal 9th Circuit Court jumped on the “collective rights” bandwagon in dismissing the complaint in the 1996 case Hickman v. Block ("We follow our sister circuits [e.g. 3rd Circuit, US v. Tot, 1942; 8th Circuit, US v. Hale, 1992] in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action."). As shown above, however, the “collective rights” theory is not just wrong, but is in direct contravention of the beliefs of the Founding Fathers.
The distinction between an absolute and non-absolute right is critical to understanding what control the government can exercise over the right of individuals to own arms. In remanding Miller, SCOTUS remarked, “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.”
This ruling has been widely misinterpreted (and even purposely misrepresented) as being an injunction against individual ownership of firearms. Compounding the problem, the 1st Circuit in Cases v. US (1942) commented "if the rule of the Miller case is general and complete, the result would follow that... the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket” In other words, if the right is absolute, the government could not restrict "the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank, or anti-aircraft guns." (Cases, 1942)
This argument is fallacious. The Miller decision did not claim the right to “keep and bear arms” was absolute. In point of fact, the decision merely says that there was no evidence to support that a “shotgun having a barrel of less than eighteen inches in length" was part of ordinary military equipment. There was no ruling on whether such evidence would have changed the outcome. Thus, far from weighing in one way or another on an individual’s right to possess firearms, Miller left more questions than it answered.
Once again we must turn to contemporaneous writing to determine what limits, if any, the Founding Fathers intended to be part of the right to “keep and bear arms.” Examples of laws describing the military accouterments required of individuals abound. Indeed, the Miller court cites several examples, to wit:
“The infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided…the musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length… The general court of Massachusetts, January session 1784, provided for the organization and government of the militia. It directed that…that every non-commissioned officer and private soldier of the said militia…be constantly provided with a good fire arm…
By an act passed April 4, 1786 the New York legislature directed:…that every citizen so enrolled and notified, shall, within three months thereafter, provide himself, at his own expense, with a good musket or firelock…
The general assembly of Virginia, October, 1785, (12 Hening's Statutes) declared…every officer and soldier shall appear at his respective Muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutered, as follows:…every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet… that the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles…” (Miller, 1939)
It is clear that regulations relating to the specific type of weaponry were common. More to the point, the regulations specified weapons typical of infantrymen. From this, it must be seen that the Founding Fathers intended the Second Amendment to convey a limited, not an absolute right. The right thus granted is one that allows individuals to possess any weapon which is in common usage among infantry troops (and logically all inferior weapons). Heavy weapons and artillery would remain the territory of the standing army and the permanently organized militia (i.e., National Guard).
Indeed, this is the situation that existed in America at the time of the Constitution. Individuals, who from time to time, served duty in the organized militia, owned their own personal firearms, while the militia unit itself (as a collective body) under the control of the state or local government owned the artillery. The objection of Cases is mere fear-mongering. The government clearly possesses (and was intended to posses) the ability to regulate the ownership of all weapons not intended for individual, infantry use.
The Federal Government, by way of Article 1, Section 8 of the Constitution, also possesses the right “[t]o 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.” This is both reasonable and just. As Hamilton wrote in Federalist 29, “What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers?”
The only question left to resolve is what limit is intended by the right of government to prescribe the discipline of individuals exercising their right to keep and bear arms (“well-regulated”). Hamilton wrote, "the project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it…Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” (Federalist 29)
Practically, what this means is that the Federal Government can proscribe reasonable rules that require an individual to demonstrate competence with his firearm. Because every able-bodied individual represents the reserve military force of the country (Presser v. Illinois, 1876) this right is properly granted to the Federal, not the State governments (unlike Driver’s Licenses, for instance, where local conditions may influence driving rules). This is not to say that the States do not have a concurrent right to proscribe additional regulations, provided that those regulations are not more restrictive than the Federal ones.
Requiring gun owners to take safety classes; obtain a license; or limit firing to approved gun ranges, private property, or legal hunting grounds is not overly restrictive and frankly, just makes sense. Government has a vested interest in ensuring that a gun owner knows how to properly operate the weapon for the reason noted in Presser. It is absurd for gun owners to argue against licensing for firearms, but not argue against hunting licenses. If the former is an undue restriction in violation of the Second Amendment (as many claim), so is the latter, as it would prevent the free exercise of the former right. However, the government cannot make the rules so restrictive as to prevent gun ownership from the majority of the citizenry. Requiring active or preparation for membership in a military organization (as suggested by Cases and Hale) would be an example of an unconstitutional restriction.
In summary, the Second Amendment grants a limited right to individual citizens to keep and bear arms. That right is limited to infantry weapons, including all handguns, shotguns, and light machine guns, a.k.a. "assault weapons," (as well as inferior and antique weapons). Regulations for demonstrating competence in the usage and handling on those weapons are allowed constitutionally and the right to make those regulations is held by both the Federal and State governments.
The Constitution and the contemporaneous written documents from the period use three distinct words when discussing the subject of military power: “Army” (or sometimes “Standing Army”), “Militia”, and “the People.” On 23 March 1775 the Continental Congress debated the use of the militia. It resolved “that a well regulated Militia, composed of Gentlemen and Yeomen, is the natural strength and only security of a free Government…”
In further defining the difference between a regular army and an armed citizenry, Alexander Hamilton wrote in Federalist 29, “if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
As noted by SCOTUS in US v. Miller (1939), "the significance attributed to the term Militia appears from the debates in the Constitutional Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected bearing arms supplied by themselves and of the kind in common use at the time. . . . In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defense.”
It cannot be doubted that the early Americans were highly distrustful of organized bodies of armed men, especially if they were in the employ of the Federal Government. It must follow, therefore, that a permanently staffed militia (such as the modern National Guard), although in the employ of the states, would comprise in the minds of the Founding Fathers, a body of professional soldiers.
Given that Article 2, Section 2 gives the President the power to call the militia into the service of the country (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”) it must also follow that the use of the term “people” in the Second Amendment was meant to act on individuals, not collective units, just as Hamilton said in Federalist 23, “we must extend the laws of the federal government to the individual citizens of America.”
Let us examine the logic of this conclusion. It is not in question that the Founding Fathers believed there was an absolute right for the citizens to be able to oppose efforts to curtail their liberties (c.f. the Declaration of Independence “…when a long train of abuses and usurpations evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government…). If only standing armies and permanent militia units (which, as noted above, could be forced into the service of the government) were legally allowed to possess arms, it would be next to impossible for the citizenry to exercise that right. There would necessarily be some body of men, not attached to either force, trained in the use of arms that was “officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” (James Madison, Federalist 46) This must lead us to the conclusion that there was a right, though not absolute, for individuals to own certain weapons.
In Miller, the government argued a “collective rights” theory to attempt to overcome this logical conclusion. This argument held no weight with SCOTUS. “Had the Court accepted the government's interpretation of the Second Amendment, the case would have likely been disposed of on the issue of standing. This is because the defendants were not members of militias, and under the government's interpretation of the Second Amendment, the Court could have found that Jack Miller had no standing to invoke the Second Amendment in the district court.” (Brannon Denning, 1996)
Despite this, the notoriously liberal 9th Circuit Court jumped on the “collective rights” bandwagon in dismissing the complaint in the 1996 case Hickman v. Block ("We follow our sister circuits [e.g. 3rd Circuit, US v. Tot, 1942; 8th Circuit, US v. Hale, 1992] in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action."). As shown above, however, the “collective rights” theory is not just wrong, but is in direct contravention of the beliefs of the Founding Fathers.
The distinction between an absolute and non-absolute right is critical to understanding what control the government can exercise over the right of individuals to own arms. In remanding Miller, SCOTUS remarked, “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.”
This ruling has been widely misinterpreted (and even purposely misrepresented) as being an injunction against individual ownership of firearms. Compounding the problem, the 1st Circuit in Cases v. US (1942) commented "if the rule of the Miller case is general and complete, the result would follow that... the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket” In other words, if the right is absolute, the government could not restrict "the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank, or anti-aircraft guns." (Cases, 1942)
This argument is fallacious. The Miller decision did not claim the right to “keep and bear arms” was absolute. In point of fact, the decision merely says that there was no evidence to support that a “shotgun having a barrel of less than eighteen inches in length" was part of ordinary military equipment. There was no ruling on whether such evidence would have changed the outcome. Thus, far from weighing in one way or another on an individual’s right to possess firearms, Miller left more questions than it answered.
Once again we must turn to contemporaneous writing to determine what limits, if any, the Founding Fathers intended to be part of the right to “keep and bear arms.” Examples of laws describing the military accouterments required of individuals abound. Indeed, the Miller court cites several examples, to wit:
“The infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided…the musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length… The general court of Massachusetts, January session 1784, provided for the organization and government of the militia. It directed that…that every non-commissioned officer and private soldier of the said militia…be constantly provided with a good fire arm…
By an act passed April 4, 1786 the New York legislature directed:…that every citizen so enrolled and notified, shall, within three months thereafter, provide himself, at his own expense, with a good musket or firelock…
The general assembly of Virginia, October, 1785, (12 Hening's Statutes) declared…every officer and soldier shall appear at his respective Muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutered, as follows:…every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet… that the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles…” (Miller, 1939)
It is clear that regulations relating to the specific type of weaponry were common. More to the point, the regulations specified weapons typical of infantrymen. From this, it must be seen that the Founding Fathers intended the Second Amendment to convey a limited, not an absolute right. The right thus granted is one that allows individuals to possess any weapon which is in common usage among infantry troops (and logically all inferior weapons). Heavy weapons and artillery would remain the territory of the standing army and the permanently organized militia (i.e., National Guard).
Indeed, this is the situation that existed in America at the time of the Constitution. Individuals, who from time to time, served duty in the organized militia, owned their own personal firearms, while the militia unit itself (as a collective body) under the control of the state or local government owned the artillery. The objection of Cases is mere fear-mongering. The government clearly possesses (and was intended to posses) the ability to regulate the ownership of all weapons not intended for individual, infantry use.
The Federal Government, by way of Article 1, Section 8 of the Constitution, also possesses the right “[t]o 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.” This is both reasonable and just. As Hamilton wrote in Federalist 29, “What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers?”
The only question left to resolve is what limit is intended by the right of government to prescribe the discipline of individuals exercising their right to keep and bear arms (“well-regulated”). Hamilton wrote, "the project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it…Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” (Federalist 29)
Practically, what this means is that the Federal Government can proscribe reasonable rules that require an individual to demonstrate competence with his firearm. Because every able-bodied individual represents the reserve military force of the country (Presser v. Illinois, 1876) this right is properly granted to the Federal, not the State governments (unlike Driver’s Licenses, for instance, where local conditions may influence driving rules). This is not to say that the States do not have a concurrent right to proscribe additional regulations, provided that those regulations are not more restrictive than the Federal ones.
Requiring gun owners to take safety classes; obtain a license; or limit firing to approved gun ranges, private property, or legal hunting grounds is not overly restrictive and frankly, just makes sense. Government has a vested interest in ensuring that a gun owner knows how to properly operate the weapon for the reason noted in Presser. It is absurd for gun owners to argue against licensing for firearms, but not argue against hunting licenses. If the former is an undue restriction in violation of the Second Amendment (as many claim), so is the latter, as it would prevent the free exercise of the former right. However, the government cannot make the rules so restrictive as to prevent gun ownership from the majority of the citizenry. Requiring active or preparation for membership in a military organization (as suggested by Cases and Hale) would be an example of an unconstitutional restriction.
In summary, the Second Amendment grants a limited right to individual citizens to keep and bear arms. That right is limited to infantry weapons, including all handguns, shotguns, and light machine guns, a.k.a. "assault weapons," (as well as inferior and antique weapons). Regulations for demonstrating competence in the usage and handling on those weapons are allowed constitutionally and the right to make those regulations is held by both the Federal and State governments.
posted by exsubdriver at 9:07 AM
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