Arms and the man: what does the Second Amendment really mean?

FILE PHOTO: An exhibit booth for firearms manufacturer Smith & Wesson is seen on display at the International Association of Chiefs of Police conference in Chicago, Illinois, October 26, 2015. REUTERS/Jim Young/File Photo – RC11E7FED7A0

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.

Also:

    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.

Epps says:

    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.

Epps says:

    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.

However:

    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.

17 thoughts on “Arms and the man: what does the Second Amendment really mean?”

  1. The second amendment may have made sense in a country that had won its independence with the help of a militia that used rifles and muskets to fight. At this point, it was still conceivable that a militia could have overturned an oppressive government that had suspended democracy.
    If this story was to retain any credibility you can understand why the gun lobby argues the case for the right to to carry more advanced weapons. However, it does seem unlikely that a militia could beat a modern army + airforce that remained loyal to the government.
    It is the idea of a militia in the constitution that no longer makes sense.

  2. John
    You’re assuming the Defence Force Employees would not join any militias against a tyrannical Government and ignore their Oath to defend their Constitution.

    These folk, in my experience, are not BIG Government sheep.

    It’s all pretty moot anyway. When Kavanaugh is confirmed to the SCOTUS, the 2nd Amendment will be safe for the next 2 decades at least.

  3. Jumpy: What seems to happen is that army officers try a coup. Usual outcome is one of the officers become a dictator if the coup succeeds. If the coup fails democratic rights will be reduced “for the sake of democracy.” Armed citizens are unlikely to make a difference either way.
    The US constitution can be changed relatively easily if the change gets enough support. Beware of schoolkid activists.

  4. Sorry, Brian, I have no wish to offend you but this whole subject has no relevance whatsoever to Australia and its needs.

    Yes. Gun-freaks, politicians, anti-gun ratbags, greedy gun wholesalers, press circulation boosters and all sorts of other evil-doers try their damnedest to make it seem relevant – but it is not – and until such time as Australia becomes the 55th or 56th State of the United States of America – it cannot be relevant to what we do or don’t do or should do in here in Australia..

    It would have been better to look at private firearms – and other weapons – ownership in, say, Lithuania or Uruguay or Norway (especially Norway, since that terrible mass murder only a few years ago) or Trinidad &Tobago rather than that in the U.S.

    I’ve have had the honour of knowing some fine Americans, some of whom were enthusiastic owners and users of legitimate firearms for lawful purposes (such as hunting and target-shooting) – and good on them – but not one them ever yapped on to me about any right to bear arms nor were they members (so far as I know) of the extremist N.R.A. Maybe that was because most of them happened to be combat veterans themselves; well-trained soldiers in their time and still actively patriotic Americans today.

  5. Graham, no offense, but I don’t limit my interest and concerns to what is relevant to Australia.

    I think we have a legitimate interest when in the USA, which holds itself as a beacon of civilisation and decency when we find on May 25:

    We’re 21 weeks into 2018, and there have already been 23 school shootings where someone was hurt or killed. That averages out to more than 1 shooting a week.

    and as of June 28 there had been 154 mass shootings in the US so far in 2018.

    (In Googling that I found 5 things to know about mass shootings in America.)

    It had been my intention to draw out the concept of originalism and apply it to dual citizenship, Section 44.1 of the Australian Constitution and eligibility to run for political office. At some time on Radio National last week I heard a discussion by three learned experts pointing out that in 1901 there was no Australian citizenship, we were all Brits, Australian citizenship did not appear in law until 1949 and took until 1984 to be confirmed. Or was it 1986?

    I couldn’t find the link, didn’t have time to research it, so I dropped it.

    The other development of general interest is the appearance of large databases of text which can establish more clearly how language was used in the past – more powerful than old dictionaries, which are just the opinion of lexicographers of the time.

  6. If I’ve understood Wikipedia properly Australian citizens ceased to be British subjects on 22 November 1984 when The Australian Citizenship (Amendment) Act 1984 became effective.
    I do know that when I was born (in Australia at the end of WWII) there was no such beast as an Australian citizen.

  7. At this point, it was still conceivable that a militia could have overturned an oppressive government that had suspended democracy.

    John, I don’t believe it would have been possible for a state militia in one of the 13 states in 1791 to take on the standing army of the USA. Your comment has stimulated me to take another look at Epps article, and as a result I’ve edited the post so the relevant section now reads:

    Epps says:

      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.

    I know in Prussia around that time if rioting got too willing the Prussian Army intervened to restore order.

    Famously in 1844 there was a revolt of weavers in Silesia, near where my folks departed from a few years later. The Prussian army attacked, shot some of the weavers, plus some bystanders.

    Karl Marx was writing his stuff around then. Heinrich Heine wrote a poem and in 1892 Gerhardt Hauptmann wrote a play, which it was my misfortune to have to study.

    Sorry I digress.

  8. zoot, that’s the one. I wish I could find the ABC RN piece, because it argued strongly that the high court got it wrong. They reckoned what the writers of the constitution were on about was preventing any of the British enemies getting under their guard.

    It’s ironic when British citizenship now becomes a barrier to becoming a pollie.

  9. Brian:
    You said, “It had been my intention to draw out the concept of originalism and apply it to dual citizenship, Section 44.1 of the Australian Constitution and eligibility to run for political office. Wow! Saying anything at all about that recent political farce and fraud would surely upset the powers-that-be; the mainstream news media has been remarkably silent on that insult to democracy – whereas, in stark contrast, they were shouting to the skies with their rationalizations and excuses when the Whitlam
    government was deposed.

    I do agree that we should look at what is happening in that parallel universe that is the U.S.A.; there are lessons for us there – these days, they are usually lessons for us in what to avoid. My instant reaction, last night, was against the widespread tendency among Australians to look only at the U.S.A. to the exclusion of the rest of Planet Earth.

    By the way, it was not just the Prussian Army that shot rioters. There is a memorial plaque in the town square of the lovely Silesian town of Rawicz, half-way between Poznan and Wroclaw, to the workers who were shot in 1921 by the government of the newly restored and independent Poland.

    Now, I shall have to leave this discussion of the defence of life, liberty and the pursuit of happiness for a much higher duty: that of getting She Who Must be Obeyed her morning cup of coffee. Hope to return here later today.

  10. Brian: in 1901, no-one in Australia would have said that the Constitutional amendment process gave us the right to abolish the monarchy. By 1999, even David Flint accepted that it did.

  11. Scott, yes, but we still need to change the constitution to reflect changed opinion and circumstances.

    So Section 44.1 applies until we change it. However, it seems clear that it was designed to keep non-Brits out of the political process. I haven’t studied the High Court judgements, but on the surface the principle of ‘originalism’ would seem to indicate that those with British citizenship should have been OK, because at that time Australians were Brits.

    Section 44 reads:

    Any person who –

    (i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power:

    I would suggest that “foreign” in that context meant non-British.

  12. John Davidson: A militia would have a difficult time fighting a modern army and air force that remained loyal to the government, but not solely because of the obvious disparity in weaponry and training; still, a victory by a determined militia with popular support is quite possible.

    IMHO, the Second Amendment to the U.S. Constitution reached its use-by date by 1846, the year of the Oregon Treaty with Britain over the northern border of the U.S. and of the outbreak its war with Mexico – and almost a decade after the coming of the electric telegraph. Other than for sentimentality, I can’t see much real value in the Second Amendment after that date. But, then again, the U.S. is a sovereign nation and its citizens are entitled to have whatever strange native customs keep them happy.

  13. A few personal observations on the Americans’ beloved Second Amendment:
    (1) A lot of those who carry on about a right to bear arms would be (or perhaps have already been) rejected for any sort of military service at all – and may well be anatomically deficient as well as mentally deficient too. Nobody lets them play with all those lovely war-toys so they sulk and throw tantrums and pay money to have their own war-toys instead.

    (2) Anyone who desires to own a concealable pistol is interested only in murder. Given all the other effective instruments – and techniques – available for self-defence, why the dickens would a normal person want to try defending themselves with that rather poor instrument : the concealable pistol? As for being a deterrent: a tall, observant Sikh guard, armed with a single-barrel, 12-gauge “crowd-pleaser” and sitting patiently on a chair, in full view, outside of a goldsmith’s shop was a far, far superior deterrent to robbers than any number of gee-whizzz, sooper-doopa pistols concealed under a shop counter.

    Pistols do have a very limited use in rural industry, but only if you are in the same confined space as a potentially dangerous large animal – a rare circumstance indeed – and if you were, you would need nothing lighter than an unconcealable piece of hand artillery like a .45″ ACP or an ancient .455″ Webley revolver. When it comes to having to put down an injured beast, a full-sized rifle (.270″, .303″, 7.62mm, etc.), carried securely in its own rack inside a vehicle is a far better, safer and kinder instrument for the purpose than a hand-gun.

    Having exhausted the few plausible excuses for having pistols, I still think only murderers or potential murderers would want them for anything else.

    Long arms (rifles and shotguns) do have legitimate applications in rural industry and in security industries but only single shot or repeaters (longarms where a separate, deliberate action is needed to place each cartridge into the chamber – such as opening and closing the bolt). Semi-automatics and single-operator machine guns, assault carbines and sub-machine guns have no place whatsoever outside of organized and disciplined military forces, not even for pig hunting in tight scrub, (which I did myself, when I was a young fellow, with a single-shot .310″ and later a bolt-action .303″).
    It was the failure, in Australia, of the anti-gun hystericals and of the lawmakers with no experience whatsoever of firearms, to discriminate the various types of firearms and their legitimate application, that has driven so many otherwise sensible Australians into the arms of the off-shore Second Amendment fanatics and their shills.

    (3) I’ll believe the linguist, Dennis Baron, on his finding about what the U.S. founding fathers probably intended.
    I’ll take it further and say that if those founding fathers were alive today, they would disown that whole bunch who are now rabbiting on about the Second Amendment.

  14. Graham, I know that wild pigs have spread a long way further south now than they were when I was a boy. I believe they are quite dangerous animals, and vermin a pastoralist would want to eliminate on sight, surely.

    So what do you think? I think I’d want the right to carry at least a semi-automatic rifle with some clout (like a .303) in my farm vehicle.

  15. Brian.
    Feral pigs are so dangerous because, despite their appearance, they are very, very agile as well as being strong, resilient and intelligent, and, if alarmed, very aggressive. Even so, I’m still not in favour of having semi-automatic rifles loose in the community. Someone who has bothered to practice enough with a well-maintained and appropriate bolt-action or lever-action repeating rifle can be as effective as someone carrying a semi-automatic rifle in dealing with feral pigs. These days, it has become fashionable to hunt feral pigs with dogs and blade weapons alone. Sadly, poorly controlled dogs have been responsible for the deaths or mutilation of young children. For a whole range of reasons, feral pigs do need to be exterminated in Australia but great care must be taken with the means of doing this: poison baiting, shooting, hunting with dogs, trapping, all have serious drawbacks. Add to that, the reactions of some hunting enthusiasts who like to shoot lots of feral pigs but who do not want to lose their sport by having all feral pigs eradicated.. It is an awkward set of problems – with each aspect loaded with political implications.

    As for the appropriate size of a rifle against feral pigs. .310″ Cadet and its equivalent 32-20 are alright in thick scrub at about 4~5 Metres, (too flaming close for the likes of most people), but you really do need something with stopping power at 100 or more Metres, like the old-fashioned .303″ or the .308″/7.62x51mm. Yes, these are military calibres; non-military ones are either a heck of a lot more expensive or would leave The Bush littered with wounded animals; this is one of the reasons I have as much scorn for anti-gun hystericals as I do for the Second Amendment fanatics.

  16. When we were last in the US for a couple of months I was well aware of the danger from bears. (I spent a lot of time walking in bear country.) During that time 3 people were killed by black bears, The advice I was given was to make a lot of noise so that I didn’t startle any bears. (Did see some but not real close – hardly surprising given the quality of the singing i used to warn them that I was there.) Capsicum spray was also recommended but I didn’t get any.
    Can understand why pig hunters and farmers killing stock need heavy duty repeaters or automatics but magazines should be very limited.

  17. John D.:
    Glad you were aware just how dangerous bears can be. Unfortunately, all of my time in the U.S. was urban or near-urban, although each rancher, conservationist or recreational shooter I came across had their stories about bears. Bears are best admired from inside a sturdy vehicle.

    A semi-automatic, heavy rifle with a magazines limited to, say, 3 or 5 rounds, seems understandably attractive. Though I haven’t owned any firearms myself for many years, I was annoyed when pump action shotguns and automatic shotguns, with their limited cartridge capacity, were included in the Howard government’s ban. The big trouble with small magazines for rifles is that the nasties in our society have no trouble at all in swapping them for 20 or 30 round magazines, or with some types of firearms, drum-magazines, then using those firearms for their own criminal, terrorist or military purposes. Add to that the risk that many types of semi-automatic rifles can be converted quite easily to light machine guns, (something that cannot be done with bolt-action or pump-action firearms, or with automatic shotguns); I am reluctant to mention the specific types lest some lurker here gets any ideas about having their own personal light machine gun for a few minutes work with a screwdriver. Anyone who does convert such a semi-automatic rifle would not worry in the least about the weapon overheating and quickly becoming a strange-looking bludgeon.

    Back to the Second Amendment. Since the Americans have just about unilaterally broken off diplomatic relations with Australia by their insulting failure to appoint an ambassador here, what say we make it bilateral? Then refuse to resume diplomatic relations until that bunch of C.S. rounds up all their Second Amendment fanatics, along with their overprotected, over-subsidized, under-taxed, uncharged Merchants Of Death, and shoves the whole damned lot inside their famous private prisons. They can make plenty of room for these dangerous scum in their wonderful private prisons by releasing all the jaywalkers and parking offenders doing 30-year sentences. See? Plenty of room for them all.

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