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Undermining Our Conversation About the Right to Arms

We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)

Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.

There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.

The ratification debates do disclose that antifederalists worried about giving the federal government power over the militia in Article I, Section 8 of the Constitution. This, goes the argument, shows that the right to arms is not about self-defense. But parsing the ratification debates for some definitive articulation of rights created by the new federal government is simply backwards.

The Court explained in D.C. v. Heller, the prefatory militia clause may illuminate the codification of the right, but does not define the pre-existing right of the people to keep and bear arms. The crucial point here, and this cannot be repeated often enough, is that the Constitution did not create rights. Its first 10 amendments, the Bill of Rights, affirm preexisting liberties, ancient and inalienable and at the very least, the rights of Englishmen.

Our Constitution’s affirmation of pre-existing rights was eloquently articulated by the great liberal Justice William Brennan, whose name adorns the George Soros-funded Brennan Center,that has supported Michael Waldman’s work. Here is Brennan, from his in dissent in United States v. Verdugo-Urquidez (1990):

In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of Government decidedly different from their British heritage. Whereas the British parliament was unconstrained, the Framers intended to create a Government of limited powers. The colonists considered the British government dangerously omnipotent. After all, the British Declaration of Rights in 1688 had been enacted not by the people, but by Parliament. Americans vehemently attacked the notion that rights were matters of “favor and grace” given to the people from the Government. . . . Thus, the Framers of the Bill of Rights did not purport to “create” rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.

Justice Brennan was pressing for broad interpretation of the Fourth Amendment. But the principle he articulated is the same one that undergirds the Heller decision. The right of the people to keep and bear arms is not confined by the prefatory militia clause in the Second Amendment. The impulse for codification does not set the boundaries of the pre-existing right. (Plus, the explicitly codified right extends to the people, not to the militia or the states. And the right to arms that was affirmed and extended to black Freedmen by the 14th Amendment admits no serious contention that the subject was militia rights. More on that next time.)

To be sure, approaching the ratification debates as a moment of creation that gives binding, limiting instructions is not entirely off-base. Although it is glaringly wrong for understanding pre-existing rights, it is precisely the right approach for discerning the boundaries of the federal powers newly created by our Constitution.

Unlike the pre-existing, inalienable rights whose infringement sparked the American Revolution, the governmental powers established by our Constitution were entirely new to the scene. The Framers spent blood and treasure in the cause of liberty and feared the ambitions of those who get power to grab for more. So the government they created was granted limited and specifically enumerated powers.

For the Framers who created the new federal government and promoted its advantages to the people, the powers of government were considered so explicit and limited that some insisted there was really no need for a bill of rights. Pre-existing rights would be protected, said Hamilton in Federalist 84, because limited, enumerated powers were themselves a brake on the infringement of individual rights. Here is Hamilton:

I go further, and affirm that bills of rights are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Today we are square in the middle of the danger that Hamilton described. We are relegated to teasing the inalienable rights of man from a few favored portions of the Bill of Rights, with the disfavored provisions disparaged by a stingy interpretive method that fails to credit the Constitution’s broad affirmation of individual rights within a government of limited powers.

Meanwhile, and perversely, federal power is deemed to be nearly boundless. We recently heard top Senators and Representatives say that Congress unquestionably had the power to force people to buy health insurance—and if that, one wonders, why not the power to dictate flossing, broccoli-eating, and infinite other no doubt healthy mandates that are utterly corrosive of liberty. (Some find consolation in the Supreme Court’s rationalization that the edict was really a tax.)

All of this turns our constitutional structure on its head. If we took the Constitution’s creation of limited powers and affirmation of pre-existing rights seriously, the salient question about the individual right to arms would be this: Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?

For those who would answer, “The Congress shall have Power To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes”—and notice how much more limited the clause seems when you read its actual language rather than just say “the commerce power”—we should apply the kind of stingy, skepticism that Stevens, Waldman, and others would erroneously apply to the “right of the people to keep and bear arms.”

Reader Discussion

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on June 26, 2014 at 14:23:28 pm

This romanticized notion that the Bill of Rights did not create rights, but merely acknowledged rights that have existed ever and eternally, creates conceptual problems.

First, recall that there were more than 10 draft rights submitted for adoption into the Bill of Rights. The first two or three (I forget) were rejected. (Thus, when people tell you that the First Amendment is first to signal its importance, you know that they’re ignorant of how the Bill of Rights was adopted.) How can I conclude that the 10 adopted rights reflect some eternal truth, but the rejected rights did not, when they were all drafted and proposed simultaneously? It seems more rational, and less mystical, to say that the adopted rights became operative when they were adopted because they were adopted, and the rejected rights did not because they weren’t.

Second, what does the theory of the ever-and-eternal Bill of Rights say about textualism? After all, the Constitution took effect before the Bill of Rights did. If we adopt the ever-and-eternal theory, we’re saying that you cannot understand the Constitution from its text; you can understand it only within some context that arises beyond its text. Should courts be free to announce the discovery of new ever-and-eternal rights that apply even in the absence of textual support? Perhaps so; arguably that’s how we end up with the right to privacy. I don’t mean to say yea or nay. I merely mean to say that this view is antithetical to texualism.

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nobody.really
on June 26, 2014 at 14:25:34 pm

Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?

Why limit it to self-defense? Where is there the authority to infringe on the right to keep and bear arms for any purpose? And where is the limit on the type of arms? Thus the Heller decision is incoherent: If the 2d Amendment defends anything, it should defend the right to keep and bear the type of arms you’d want for your militia – high-capacity automatic weapons, shoulder-mounted Stinger missiles, grenade launchers, bazookas, etc. Yet these end up being precisely the kinds of arms that the Heller decision says Congress can regulate.

Meanwhile, the Justices continue to convene so-called “public” meetings in areas where the right to bear arms is entirely precluded. Go figure.

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nobody.really
on June 26, 2014 at 15:20:28 pm

" It seems more rational, and less mystical, to say that the adopted rights became operative when they were adopted because they were adopted, and the rejected rights did not because they weren’t."

Not quite! A closer reading of the "proposed rights" reveals that many of them were redundant, sought to protect certain individual actions that were considered in absolutely no danger of being infringed, or were issues that the actual text / debates at the Convention had already resolved. From this, it is difficult to assert that the rights remaining to be accorded "specific protection" within the BOR did not, nor could not exist without a constitutional protection. One always had a "liberty of self defense" whether or not some scribe affixed text to a given document. so too, the States had retained a certain measure of sovereignty which pre-existed to ratification of the BOR.
While I recognize your concern (and indeed share it) with extra textual considerations to constitutional interpretation, there does not seem to be any way around it. Unless one understands the intent of the Framers in crafting a government of, say, limited powers, how does any of it make sense? Indeed, in some ways it is safer to look to intent rather than just text as we have come to see how a "clever little judgy" can construe text to meet his / her own predilections.
The issue, Nobody, seems to be what intent? - is it one that we presently conjure up or one that is somewhat respectful of the Framers intents. Yes, reasonable people may differ on this - but certainly not to the extent that our present band of Black Robed Masters have done so - but at least there is some circumscription by adhering to intent.

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gabe
on June 26, 2014 at 15:26:22 pm

You are right again!

We must remember that the British were quite surprised to see that the American populace were armed with "military" weapons and that in fact the American long bore rifle was superior to the british version. In effect, everyman had an infantry weapon - not just a hunting weapon.
I have asked before whether or not I could buy and park an M1 Abrams tank in my front yard (Ok, backyard, I don't want to scare the passerby). Strictly speaking, I should be able to as todays militia, the National Guard, certainly has them.
"What say you, can you spare a $100 million or so, I can cover up the mole holes in my backyard or at least blast the little bugger away).

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gabe
on June 26, 2014 at 18:56:23 pm

Pre-existing rights are perfectly consistent with textualism. The response to Hamilton's point (and the worry of many others) was the 9th Amendment - "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 9th Amendment was actually cited by Brennan in the passage that I quote in the post.
It is however telling that modern judges find it so hard to give content to the 9th. This is one of the distortions caused by the plenary commerce power. In a regime of truly limited powers, the 9th amendment would recognize the sea of rights surrounding islands of power. Maybe this deserves its own post.

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Nick Johnson
on June 26, 2014 at 19:33:09 pm

Prof:

Quite right with the 9th and the devastating effect of the "enhanced" commerce power. Earlier in the week, I linked to an article in which the Feds are claiming jurisdiction in an Amish "beard cutting" incident in Pennsylvania BECAUSE the shears were shipped into the state from another state.
Are you kidding me? This is what it has come to - I suppose if the victim had taken a hair growth remedy that was manufactured in another state that too would grant the Feds access / control over state police powers.

take care
good piece and keep them coming!

gabe

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gabe
on June 28, 2014 at 08:53:26 am

Actually you can own tank. The weapons on the tank are harder to own. Many private individuals and companies own tanks and other armored vehicles. The reason you do not see M1s running around on the street is the expense of operating the beasts and the fact that Uncle Sam is reluctant to sell them to anyone other than foreign governments.

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Bill
on June 28, 2014 at 16:56:00 pm

Using the fact that the shears had moved in interstate commerce is hardly a stretch for the federal government. Look at Wickard v. Filburn, 317 U.S. 111 (1942), in which the Court upheld the government's power under the commerce clause to control products that had never moved in commerce at all, since their use might affect the market for other products that had moved in interstate commerce.

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Ken
on June 28, 2014 at 20:59:43 pm

"Meanwhile, the Justices continue to convene so-called “public” meetings in areas where the right to bear arms is entirely precluded. Go figure."

Federal buildings have long been (unjustly) gun-free zones long before the Heller decision was made, and so is D.C. to this day.

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AntiCitizenOne
on June 29, 2014 at 10:46:48 am

Right you are about that!
After all, if a farmer can not produce an extra bushel of wheat for his family's consumption, as this "affects" interstate commerce, why would we not let the Feds control who can cut someone else's beard?

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gabe
on June 29, 2014 at 12:15:13 pm

Nobodyreally, sometimes we agree, and disagree. You know better than to put this out: “After all, the Constitution took effect before the Bill of Rights did.” There would not have been a Constitution accepted -- without the assurances -- of a Bill of Rights enacted. As for Hamilton – thank God we didn’t take that bit of advice. The three branches of government, over the past seventy years, have been doing Hamilton’s work, over-stepping our Bill of Rights. We need to put our ‘house’ back in order. And as an interesting sidebar, the BOR’s First Amendments religious clause DID enumerate A RIGHT. “… the free exercise (thereof) religion”. And, as usual, the federal court fails to include the very notable decision of U.S. v. Cruikshank in 1895.“Was not a right granted by the Constitution . . . nor dependentupon it. It was an amendment that restricts the powers of the national government.”
I personally agree w/the Heller decision – but not at how they arrived at it. (The federal court still has their hands on the pie. Who knows how a future federal court will cut the pie.)
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 02, 2014 at 15:11:08 pm

What the 2nd Amendment means: http://gunrightscalifornia.org/educate/gun-news/item/deconstructing-the-2nd-amendment.html?category_id=6

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Isaiah
on July 03, 2014 at 08:43:17 am

[…] and how it impacts the right to keep and bear arms. Put your tweed jacket on and find your pipe. Undermining Our Conversation About the Right to Arms | Online Library of Law and Liberty Thank you for not emanating in my penumbra. Reply With […]

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Prof. Nicholas Johnson: Undermining Our Conversation on the RKBA
on July 03, 2014 at 12:45:09 pm

"one wonders, why not the power to dictate flossing, broccoli-eating, and . . . "
.
Well! There you have it!
.
George Bush II would never have mandated Broccoli eating! For fear of his fathers wrath!
.
After all. There are some things that are inviolate!
.

.

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DickG
on July 05, 2014 at 15:50:36 pm

Stevens's laughable recommendation to add the five words "while serving in the militia" expose the counterfeit nature of his argument-of-record, namely, that the Second Amendment only guarantees a right to bear arms in a militia. Stevens has been caught with his pants down, and what is even more humiliating, it is he himself who dropped trou. If the Second Amendment meant what he consistently argues, then why indeed are those five words necessary?

Checkmate, Mr. Justice. Thank you for ceding the point.

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BHirsh
on July 05, 2014 at 15:54:13 pm

Since the very language of the amendments assume the rights as already existing, it is fatuous to say that they didn't in fact exist until the Constitution recognized them

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BHirsh
on August 04, 2014 at 04:17:00 am

" plenary commerce power"

Can't that be adequately addressed by bringing the constitutional authority back to commerce strictly understood? I.e. the buying and selling, the sending and receiving, of goods and services over state lines? A strict understanding of this would render all the "having moved in commerce" nonsense to the rubbish heap of constitutional history where it belongs.

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Kirk Parker
on August 28, 2014 at 23:33:09 pm

The "well regulate militia" and the "people" are two separate and parallel bodies in this amendment. Militias by commonly accepted definitions, are armed, trained and organized entities, commanded by a hierarchy of commissioned leaders . It would be a redundancy to cite both an (armed) militia and people keeping and bearing arms if the two were one and the same or closely linked. It would suffice to declare that "The States have the right to maintain well regulated militias", if the keeping and bearing of arms were meant to be on a collective basis. If vulnerability and powerlessness in threatening situations is your thing, and a majority of your fellow citizens are so disposed, there is a constitutional protocol for the removal or re wording the 2nd or any other Amendment. Go for it. Civil disarmament seemed to work in lots of places like NAZI Germany, Cambodia, Cuba, North Korea, etc.etc.

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Woodpiggie
on November 23, 2015 at 12:01:26 pm

[…] Read the entire editorial here. […]

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Undermining Our Conversation About the Right to Arms

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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