Many see the individual right to bear arms as a basic American human right secured by The Second Amendment of the United States Constitution. However, from 1791 to 2008 the matter has been debated:
- by attorneys and senators, slave owners and freedmen, judges, Black Panthers, governors and lobbyists. For some, the militia was key; for others the right that shall not be infringed; for yet others, the question of states versus the federal government.
The case of District of Columbia v. Heller in the Supreme Court in 2008 appeared to settle the matter, although the decision was quite narrow and constrained. Now new information has come to light which demands a reconsideration.
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.”
Context and intent are important in the interpretation of law. It is called Originalism. So did the right to bear arms extend to beyond the context of militias to the individual?
Garrett Epps at The Atlantic says in an article The Second Amendment Does Not Transcend All Others:
- Its text and context don’t ensure an unlimited individual right to bear any kind and number of weapons by anyone.
District of Columbia v. Heller was concerned to overturn a law prohibiting the carrying of hand guns, and requiring lawfully acquired shotguns and rifles to be kept “unloaded and disassembled or bound by a trigger lock”. In the original litigation there were six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black. All six wanted to keep guns in their homes, readily available for self defense.
The decision held that:
- The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Moreover, the Second Amendment right is not unlimited:
- The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
- The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.
The majority judgement was written by Justice Antonin Scalia.
- In Heller, Justice Antonin Scalia divided the amendment into a “prefatory clause” (“militia”) and an “operative clause” (“right to keep and bear”). Then, drawing on statutory interpretation texts, he announced that the “militia” language expressed the amendment’s purpose, but that “a prefatory clause does not limit or expand the scope of the operative clause.”
Epps disagrees with Scalia’s grammatical analysis:
- It’s not clear to me that that’s a rule. Statutory interpretation is a useful constitutional tool, but constitutions aren’t statutes, and a one-sentence amendment isn’t a statute with a separate “preamble.” The “militia” clause is an “absolute phrase”; in grammatical germs, it modifies the entire sentence to which it is attached. I am not sure that I think “modification” can never contain “limitation.” It seems to me—as even Scalia wrote—that the words mean “Because a well-regulated militia is necessary etc., the right of the people etc. shall not be infringed”—and that the second part of the sentence doesn’t float very far away from the first.
Epps’ discussion is long, but in essence he says that the purpose of the amendment was to reassure the states of the union, based on former colonies, that they had the right to maintain armed militias. Seems the slave-owning states felt need for armed force to counter any possible uprising of slaves. Epps says:
- That contextual reading is quite enlightening; it strongly suggests to me that the main—indeed, almost exclusive—purpose of the amendment was, in fact, to protect the rights of states to maintain and arm militias. There’s certainly enough evidence to support an argument for some reference to personal possession—but no convincing proof that personal possession was the main focus, or that personal possession was intended to be unqualified.
- Under the Articles of Confederation, from 1777 on, states were required to maintain their own “well regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.” (Emphasis added)
However, the Articles of Confederation was but the first iteration of the Union of 13 states.
In the Constitution of 1787, by contrast, the federal government would control virtually every aspect of war, peace, and military structure. The intention of Second Amendment in 1791 was to restore some potency to the individual states that went beyond their police force to maintain internal order.
However, Epps says we can’t be sure that those formulating the Amendment were only concerned about militias. However, we can be sure that it was not a human right allowing all persons to carry any weapon whatsoever in any circumstances.
The Economist now reports that we can have actual knowledge of how people were using the term “bear arms”. We now have the technical means of digitising a large number of texts into a ‘corpus’ where words and phrases are searchable.
- A corpus can be general, like Google Books, which has around 500bn words of English text. But it can also be specialised. Two newcomers are the Corpus of Founding Era American English, with 139m words across 95,000 documents from 1760 to 1799, and the Corpus of Early Modern English, with 1.3bn words from 1475 to 1800.
Now here’s the important bit:
- Dennis Baron, a linguist at the University of Illinois Urbana-Champaign, searched for “bear arms” in these databases, and found about 1,500 instances. Of these, he says, only a handful did not refer to organised armed action. It is true that several state constitutions guaranteed the right to “bear arms” and explicitly mentioned self-defence. So Mr Baron’s digging does not completely close the case. But it has shown that the default meaning of “bear arms” in the founding era was, indeed, military.
Justice Scalia had bolstered his argument by citing an edition of Samuel Johnson’s dictionary from 1773, plus selected prose from the period in which the constitution was written.
That now looks like an extreme case of misleading cherry picking.
See also my earlier post The rise and rise of American gun culture which found that there weren’t many guns in America before the War of Independence.
Also of interest is Epps’ What Clarence Thomas Gets Wrong About the Second Amendment cites a number of cases where city or state law restricts the right to “bear arms” in the individual sense.
- The steady increase in mass shootings in the United States is degrading our public life, deforming our educational system, and threatening our very existence as a nation rather than a Hobbesian dystopia.