By Geoffrey Stone
Understanding the Second Amendment
Posted: 01/09/2013 8:05 am
Opponents of laws regulating the sale, manufacture and use of guns fervently invoke the Second Amendment. In their view, the Second Amendment ("a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed") forbids the government to regulate guns. Period. End of discussion.
But it is more complicated than that. At the outset, let's put aside the argument that the "well-regulated militia" clause signficantly narrows the scope of the Second Amendment. Although most judges and lawyers endorse that interpretation, the Supreme Court, in its controversial five-to-four decision in District of Columbia v. Heller, rejected that understanding of the text.
So, let's consider that matter "settled." Let's assume, then, that the Second Amendment reads: "The right of the people to keep and bear arms shall not be infringed." Now, that sure sounds absolute. But it's not that simple.
Consider, for example, the First Amendment, which provides: "Congress shall make no law ... abridging the freedom of speech." This also sounds absolute. But does the First Amendment mean that the government cannot constitutionally regulate speech?
Justice Oliver Wendell Holmes put that possibility to rest in 1919 with a famous hypothetical. "The most stringent protection of free speech," he observed, "would not protect a man falsely shouting fire in a theater and causing a panic." In other words, even though the text of the First Amendment sounds absolute, it is not.
But how can this be so? Doesn't the text mean what it says? Here's the catch: Even though it is true that "Congress shall make no law ... abridging the freedom of speech," we still have to define what we mean by "the freedom of speech" that Congress may not abridge. The phrase "the freedom of speech," in other words, is not self-defining. And as Justice Holmes demonstrated with his hypothetical, it does not cover an individual who falsely shouts "fire!"in a crowded theater.
But that is only the beginning, for despite the seemingly absolute language of the First Amendment, the Supreme Court has long-held that the government may regulate speech in a great many situations. In appropriate circumstances, for example, a speaker can be punished for defaming another individual, for making threats, for selling obscenity, for distributing child pornography, for inciting a murder, for "leaking" confidential information, for using a loudspeaker at night in a residential neighborhood, for handing out leaflets on a public bus, for erecting a too-large billboard, and for using naughty words on television, to cite just a few of many possible examples.
Thus, although the First Amendment seems absolute in its protection of "the freedom of speech," the Supreme Court has reasonably recognized that it does not guarantee us the right to say whatever we please, whenever we please, wherever we please, in whatever manner we please. The "freedom of speech" is subject to regulation.
The same is of course true of the Second Amendment. Even if we agree that the Second Amendment forbids the government to "infringe" the right to "keep and bear arms," that does not mean that the government cannot reasonably regulate the manufacture, sale, ownership and possession of firearms. Indeed, this is precisely what Justice Scalia said in his opinion for the Court in Heller.
It is time for opponents of gun control to stop mindlessly shouting "The Second Amendment!!" as if that ends the discussion. It does not. Just as there is no First Amendment right to falsely yell fire in a crowded theatre, there is no Second Amendment right to carry an AK-47 there.
And that is only the beginning of what the Second Amendment does not guarantee.
What's the Point of the Second Amendment?
Posted: 01/22/2013 1:32 pm
The 2nd Amendment guarantees the "right to bear arms," right? It's right there in the Constitution between the 1st Amendment, which gives people the right to annoy you, and the 3rd Amendment, which is probably very important. (I looked it up. It says soldiers can't crash on your couch without an act of Congress.)
To paraphrase Inigo Montoya of The Princess Bride, we keep using that phrase "the right to bear arms," but I do not think it means what we think it means. As we have a national conversation about guns, it might be nice to make sure we're all reading the same 2nd Amendment.
The first thing you notice when you read the 2nd Amendment is that it's a grammatical mess of bad syntax and vague meaning. Read it for yourself:
"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."
I learned to write a better sentence than that in the 7th grade. First, "well-regulated" lacks a hyphen, and the dependent introductory clause dangles there uselessly, kinda-sorta requiring militias to ensure security but confusing the basic thrust of the sentence. If you squint and tilt your head, you can infer that the 2nd Amendment states that the federal government is not allowed to limit your right to own or carry a gun. Because freedom, or something.
The only thing the 2nd Amendment clarifies is that the worst writing is done by committee. If that were the extent of it, we could rest easy, knowing that Congress intended that they should never mess with my right to keep and bear arms, till death do us part. But here's the thing that makes me think the founding fathers might have needed adult supervision: The 2nd Amendment that's in the Constitution isn't the version Congress voted on. Someone changed it before it went to the states. Doesn't that just make you want to turn the Bill of Rights over and find the treasure map on the other side?
Here's the text of the 2nd Amendment that Congress actually voted on:
"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."
This one's even worse. What's the subject of the sentence, "militia" or "right"? Doesn't this read as if they were dying to get out of town, shouting out phrases, and assuming that the guy writing it down would clean it up? But one wig-wearing slave-owner's self-evident truth is a 21st Century American's confused mess. Do we have an absolute right to a well-regulated militia or to keep and bear arms?
Lost in the gun debate -- and in the impenetrable mess of the dueling versions of the 2nd Amendment -- is that the Founding Fathers thought there was a point to having a gun: "the security of a free state." As long as we're projecting our 21st-Century views onto the bad syntax of harried 18th Century revolutionaries, I read that as Americans can take up arms to defend their country, not against their country.
Somehow, the most hysterical voices against gun safety equate our duly elected leaders with tyranny. Because Barack Obama thinks guns should be "well-regulated," he's become their enemy. For their most devoted defenders, guns have become a reflexive right. We have the right to own guns so we can have guns in case someone wants to regulate your guns.
The point of having guns isn't to have guns. We have guns to protect ourselves and to hunt, but the reason they are constitutionally protected is to ensure "the security of a free state."
There's a word for those who would take up arms against our government, and it's not "patriots." If you have a gun to protect yourself against someone regulating your gun, then what you love isn't America, or freedom, but your gun.
A friend of mine fought in Iraq with the 101st Airborne. He says, "If people want to play with guns that badly, let them join the Army," which, when you think about it, is one kind of a well-regulated militia.
...."Justice Anthony Kennedy and his conservative brethren seemed to fully embrace the gun lobby's favorite romantic myth that the founders, inspired by the image of the musket in the hands of a minuteman, wrote the Second Amendment to give Americans the right to take up arms to fight government tyranny. But what the founders really had in mind, according to some constitutional-law scholars, was the musket in the hands of a slave owner. That is, these scholars believe the founders enshrined the right to bear arms in the Constitution in part to enforce tyranny, not fight it.
Last week at an American Constitution Society briefing on the Heller case, NAACP Legal Defense Fund president John Payton explained the ugly history behind the gun lobby's favorite amendment. "That the Second Amendment was the last bulwark against the tyranny of the federal government is false," he said. Instead, the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. Payton explained that the founders added the Second Amendment in part to reassure southern states, such as Virginia, that the federal government wouldn’t use its new power to disarm state militias as a backdoor way of abolishing slavery.
This is pretty well-documented history, thanks to the work of Roger Williams School of Law professor Carl T. Bogus. In a 1998 law-review article based on a close analysis of James Madison’s original writings, Bogus explained the South’s obsession with militias during the ratification fights over the Constitution. “The militia remained the principal means of protecting the social order and preserving white control over an enormous black population,” Bogus writes. “Anything that might weaken this system presented the gravest of threats.” He goes on to document how anti-Federalists Patrick Henry and George Mason used the fear of slave rebellions as a way of drumming up opposition to the Constitution and how Madison eventually deployed the promise of the Second Amendment to placate Virginians and win their support for ratification."
Comrade Bevis, with your limited ability to cut and paste you are turning into the "Major Brown" of this essage board. Everyone here can be confident if Bevis can read it and understand it (with limited capability) anyone smarter than a lizard can understand it. Napoleon was right.