February 03, 2006

2nd Ammendment Treatises

A critical analysis by Glenn Reynolds.

A second treatise, on it by Glenn Renyolds.


One modern critic of the Standard Model, Dennis Henigan of the Center to Prevent Handgun Violence, dismisses this basis for the Second Amendment. Henigan describes what I call the "Standard Model" as the "insurrectionist theory" of the Second Amendment.[39] According to Henigan, it is absurd to believe that the Framers intended to include a right of revolution in the Constitution.[40] Henigan's argument suffers from a number of problems, not least of which is that in fact the Framers did seem to believe in just such a right. Aside from the passages quoted above, the 1794 Tennessee Constitution, which was adopted just after the adoption of the Bill of Rights and which Thomas Jefferson is said to have described as "the least imperfect and most republican of the state constitutions,"[41] contains an explicit recognition of the right--and in fact the duty--of citizens to rebel against a tyrannical government. Article I, Section 1 of the Tennessee Constitution provides:

That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.[42]

Discussion of the right to keep and bear arms seems to lead inevitably to questions of whether the existence of such a right necessitates the right to own, for instance, a howitzer or a nuclear weapon. Writers adhering to the Standard Model, which stresses fidelity to the purposes and history of the Second Amendment, have arrived at fairly convincing answers to such questions by drawing on those sources.[78]

The right to keep and bear arms is no more absolute than, say, the right to free speech. Just as the demand "your money or your life" is not protected by the First Amendment, so the right to arms is not without limits. But the right to arms is no more undone by this fact than freedom of speech is undone by the fact that that right is not absolute either.

Mainstream scholars of the Second Amendment draw limits from the text and from the purpose of the provision.[79] Textually, the language "keep and bear arms" is interpreted as limiting the arms protected to those (p.479)that an individual can "bear"--that is, carry.[80] This fact, together with the fact that the right is seen as one pertaining to individuals, leaves out large crew-served weapons such as howitzers, machine guns, nuclear missiles, and so on. Presumably individuals (if wealthy and eccentric enough) could "keep" such weapons, but they could not "bear" them.[81]

Because one purpose of the right is to allow individuals to form up into militia units at a moment's notice, the kinds of weapons protected are those in general military use, or those that, though designed for civilians, are substantially equivalent to those military weapons.[82] Because another purpose is the defense of the home, Standard Model writers also import common-law limitations on the right to arms, as they existed at the time of the framing.[83] Under the common law, individuals had a right to keep and bear arms, but not such arms as were inherently a menace to neighbors, or that had an unavoidable tendency to terrify the community. Thus, weapons such as machine guns, howitzers, or nuclear weapons would not be (p.480)permitted.[84] Note however that the much-vilified "assault rifle" would be protected under this interpretation--not in spite of its military character, but because of it. The "recreational and sporting uses" often cited by both sides in the contemporary gun control debate, on the other hand, are not relevant. They are cited by those who favor gun control in the hopes of not arousing the fears of hunters and target shooters, and by those who oppose gun control in the hopes of mobilizing those same groups. But they have nothing to do (directly) with the purpose of maintaining an armed citizenry. Recreation and sport, to the extent they are protected at all, are covered only penumbrally; the Second Amendment is not about sport or recreation.[85]


Blogger English Professor said...

Very interesting post. But I have a problem with interpreting "bear" to mean "carry." The only weapons available to the colonists, as I understand it, were rifles/muskets/etc. and cannons. Jefferson could not have foreseen howitzers. If I have the right to only those arms which I can handle, does that mean I have no constitutional right to a double-barrel shotgun if I'm a small person who can't hold it well, or gets floored by the recoil? My example is silly, I know, but I still think that interpreting "bear" in this way is a distortion.

08 February, 2006 09:51  
Blogger Ymarsakar said...

I don't think it matters whether bear means carry or something else. Simply because if you take the whole legal system, with the Bill and Constitution, it ends up balancing out each other.

While the writers of the 2nd Ammendment could not forsee future weapons, they did understand the purpose of armed citizens balancing out an armed and standing army armed with modern weapons. Therefore they would have crafted their Bill of Rights to make sure that citizens could not be made to be inferior than the National Guard or the Marines, for example. I take infringement to mean to forcibly create a lack of balance. Jefferson, for example, had no problem requiring people to be armed. He had no problem with the government mandating that people be BETTER armed than the standing army for example, he and others found on danger in that. Neither do I.

The Marines with their high tech gear, training, and discipline will always be more combat ready than civilians in a militia, the Founding Fathers realized this. So they knew they had to counter quality with quantity. But there comes a point when 100 million people armed with bats really doesn't outnumber a battalion of Marines with heavy weapons and air support. So what Stalin said doesn't apply here, there is no quality to a quantity all on its own. There has to be a bare minimum standard, which tends to be whatever people can carry on their person.

As for personal right to only those arms which you could handle, my take is this. Due to the equal protection clauses, even if you had no explicit Constitution right to bear arms you could not handle cause of their weight, that does not nullify your Constitution right to life, liberty, and the pursuit of happiness. If you could have those things, without a M60 Machine gun or a 50 pound M82 Barret A-M Rifle, then it shouldn't be a problem. But let's just assume you had no constitution right to stuff, the legal system could not bar you from obtaining those weapons solely because they would have to treat other citizens the same way. I do not truly envision a workable legal systems that says, "it is illegal to own this weapon because while 99% of the population can carry it, this one 90 pound lady can't". Equal protection serves its purpose well there.

I don't see why it is a distortion, because a person's ability to protect himself is directly proportional to how well he uses his weapons. If he can't take the recoil from a M60 machine gun, then it doesn't matter if the government "bans" them. To the founding fathers and to me, banning a weapon you couldn't use in the first place, isn't infringing upon the right to bear arms. How does someone infringe upon my right to breath through water, if I can't do that in the first place?

The Founding Fathers took care to create rights that people actually had, as opposed to privacy and equal entitlement to welfare checks, which don't exist on the same plane as human rights to property, life, and liberty.

Refering to a real life argument, a lot of people want to ban handguns and just allow only shotguns for home defense. Using your example, there really is a 90 pound woman that may be floored by the recoil from a 18 gauge shotgun. Or even a 12 gauge. They use the argument that the military uses shotguns to clear houses, pretty well, so that this means it is okay for the gov to ban handguns cause they are less useful at home than a shotgun. I make the note, that the Marines don't care about the house they are fighting in nor any pets that might get shot, while if you are defending your home I presume you would care. I also make the note that if the house is small and the shotgun gets caught on a hallway cause you had to turn around really fast, then it really isn't very "useful" now is it.

If the government outlaws handguns for home defense, and a 90 pound woman can only use handguns, not shotguns, then the government has infringed upon her right to bear arms and her ability to protect her life and her property. Because while it might not matter if the gov bans a M60 machine gun, that only 1 out of 300,000 people can wield one handed and standing. It does matter if the gov bans handguns, which the great majority of men and women use for self-defense.

It is simply a concentration of common sense, legal principles, and Constitutional foundations. It can be applied to most any scenario, including the one you presented, which is not as ridiculous in the legal sense as you may have percieved it to be.

The first purpose was to arm the citizens as a light guerrila force. If the criminals carry handguns, then handguns being beared is adequate. if the criminals are now using bullet proof vests and assault rifles, and they can bear those weapons, then there is no reason why the citizens have fewer liberties than the criminals.

There is no real threat of a military coup or an occupation by the armed forces. There might have been in the past, but there isn't now. But that actually doesn't invalidate the original purpose of the wording of the 2nd Ammendment. Since it seems to me, because they could not forsee future consequences, the Founding Fathers tried to make it a little big vague and non-specific, trusting in the decisions and choices of the people rather than what they would set on paper. Perhaps they did not realize that the word militia would cause so much controversy, but maybe they thought their descedents wouldn't all be lawyers either.

09 February, 2006 13:58  
Blogger English Professor said...

Thanks for directing me back to your response, Y.

I guess we have to continue to let Cheney have his shotgun, eh?

14 February, 2006 18:55  

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