Praying for A Second Shot on the Second Amendment
by Carl T. Bogus, Professor of Law, Roger Williams University School of Law
[Editor's Note: Watch Professor Bogus speak on the Second Amendment at this ACS Press Briefing)
For those of us who believe that the collective rights model is the correct one for the Second Amendment – that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia – oral argument in District of Columbia v Heller was ominous. Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.
The Second Amendment provides a quintessential example of the adage “a little knowledge is dangerous.” Those who know a little history tend to come out on the individual rights side. Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view. Several historians have written about this phenomenon. They are particularly disdainful of lawyers doing “law office history” – failing to adequately understand the period under examination – and making a variety of errors as a result. One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views. See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.
Undoubtedly, these historians cringed at comments by Justice Anthony Kennedy, who seems to have learned history from Fess Parker’s memorable portrayal of Davy Crockett in the 1950s Walt Disney television series. Being of the same generation as Justice Kennedy, I am fully sympathetic. For anyone who was then a boy, the image of Fess Parker adorned in a coonskin cap, with his trusty musket “Old Betsy” slung casually over his shoulder, will live forever. Nonetheless, it is quite something to believe that James Madison and other members of the First Congress had a similar image in their heads when they wrote a provision that begins with, “A well regulated Militia, being necessary to the security of a free State....”
When Walter Dellinger, counsel for the District of Columbia, mentioned – quite accurately – that in the eighteenth century the phrase “keep and bear arms” had a military connotation, Justice Kennedy asked: “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” No, it didn’t. After all, in 1791 no one was trying to take muskets out of the hands of frontiersmen or hunters (who more often trapped than shot game). Madison was no more likely to worry about protecting frontiersmen from federal disarmament than he was to worry about protecting farmers from laws prohibiting the growing of crops, or mothers from laws prohibiting them from nursing their babies.
Even the British did not disarm American frontiersmen. On the day the shot was heard around the world, the British were focused on confiscating militia munitions in Lexington and Concord. They were particularly interested in one barn that they believed held seven tons of gunpowder. David Hackett Fishcher, Paul Revere’s Ride at 85 (1994).
What Virginian Madison was worried about when he wrote the Second Amendment was the possibility of Congress allowing the militia – upon which the South relied for slave control – to become “disarmed.” Fellow Virginians George Mason and Patrick Henry had accused Madison and his fellow members of the Constitutional Convention in Philadelphia of giving Congress exactly that power when they wrote a document that allocated the lion’s share of authority over the militia, including the authority to “arm” the militia and thus conversely to disarm it, to the national government. See Carl T. Bogus, The Hidden History of the Second Amendment. The prospects of slave revolts were even more terrifying than grizzly bears – even though Fess Parker did battle only with the latter.
I suppose images of John Wayne and the Wild West have also done their share of damage. The Justices might be interested in the following observation by Garry Wills: “[T]hose entering the towns had to come disarmed, since it was against the law for anyone but law enforcement officials to carry a gun.” Will added: “The West was not settled by the gun but by gun-control laws.” Garry Wills, Reagan’s America 106 and 461 (1987).
Several Justices seemed to think that finding that people have an individual right is no big deal. “Reasonable” or “sensible” gun control laws will still survive because every right is subject to restriction. Both plaintiff’s lawyer and Solicitor General Paul D. Clement encouraged such views. The problem is that the only gun control regulations that significantly reduce homicides, aggravated assaults, and suicides are those that reduce the number of handguns in general circulation. Research data do not support the conclusions that lives are saved by waiting periods, background checks, firearm training programs, or other programs that do not directly affect the number of handguns in general circulation. Strong gun control is effective while the modest measures so often termed “reasonable” or “sensible” do not. See, e.g., David Hemenway, Private Guns, Public Health at 169-171. Meanwhile, we know that the law under challenge – the District of Columbia’s handgun ban – reduced firearm-related homicides within the District by 25 percent and firearm-related suicides by 23 percent. Colin Loftin, Ph.D., et al., Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia.
Two justices who clearly read history carefully were Souter and Stevens. They understood, for example, that the right-to-have-arms provision in the English Bill of Rights of 1689 was not about whether government could regulate firearms but rather which branch of government – Crown or Parliament – could do so. Justice Breyer’s questions were intelligent and well-informed, but I read him as also likely endorsing the individual rights position. He seems to believe doing so does not unduly constrain firearm regulation because the right is still subject to reasonable restriction, a view encouraged by liberal scholars Laurence Tribe and Erwin Chermerinsky. But once the Supreme Court declares that the Founders intended to bequeath a sacrosanct individual right to own guns – instead of intending to ensure that states had some minimum right to armed militia to provide for their own security – the political impact of the Court’s decision will preclude effective gun control from even being seriously considered.
Those of us who are convinced that the collective right model is correct, both historically and prudentially, can only hope that some of the justices will reconsider their tentative views and ultimately decide against throwing over long-standing precedent of reading the Second Amendment as militia-based.
Written By:George Lyon On March 20, 2008 3:22 PM Written By:Herb Martin On March 20, 2008 9:23 PM
It is amazingly refreshing and encouraging to read a review by some Prof. Bogus who clearly has amassed overwhelming prejudice against firearms to the point where he can neither read the law, the Constitution, nor even history and yet realizes that 6 or more of the Justices see that the fact of the 2nd Amendment protected an pre-existing, individual right self evident.
Even the District's attorney Dellinger admitted this within the first few minutes of the oral arguments.
But let me not get away from the delight that it looks like 6 or more justices will AFFIRM the Right to Keep and Bear Arms as personal right enjoyed by Mr. Heller as soon as the District is forced to stop infringing that right by a gun ban that does NOT contribute to 'reducing' the INCREASING crime rate in DC.
Mr. Madison wrote of the right of individuals, not the right of the militia. He worded the second amendment this way to protect the people from people like Prof. Bogus and others, if they by chance came into power. Stop attacking the second amendment and punish severly those who us guns to commit crimes. Strictly inforcing the laws on the books now would do much more.
The Bill of Rights is not a list of rules. The Founding Fathers were distilling fundamental human rights to their essence for a document that would memorialize them for the ages. They used plain, simple language so the meaning of the Second Amendment would be clear to the barely literate as well as the learned. They wrote it just like they said it, and punctuated it accordingly.
The guy who takes ten paragraphs to explain why a few words do not mean what they state in plain and simple language is not a scholar, he is a con artist.
Carl Bogus wrote:
"For those of us who believe that the collective rights model is the correct one for the Second Amendment - that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia..."
A government militia? I guess you get that idea from the "well regulated" part of the 2ndA. For this to mean that the militia should be regulated by the state, should it not read "state regulated"? Also, are you not confusing the 18th century meaning of "regulated" with its 21st century meaning? In the 18th century, its use in this context means well trained and orderly.
According to USC Title 10 sec 311(a), the militia comprises "all able-bodied males..." with a few exceptions and in 311(b)(2), they are "the members of the militia who are not members of the National Guard or the Naval Militia." According to art. 1 sec. 8 of the Constitution, one of the responsibilities of the militia is to execute the laws of the union. So...
If the states will not uphold their responsibility to maintain militias, it is then up to the militia (the individual people) to execute this law of the union. As the 2ndA recognizes a pre-existing or natural right, we the people do not need to ask for government's permission to do this.
Maybe you don't see the rapid onset of the American police state. Maybe you are not aware of the numerous pieces of legislation passed since 9/11/01 that have, taken together, voided much of the Bill of Rights. Maybe you want to be taken care of by a strong central government. Maybe you're still caught up in the false dichotomy of what is erroneously called a two-party system. Maybe you think the Republicans or, more likely, the Democrats will set the country right. Maybe you believe criminals will obey the next gun law to be passed. Maybe you've fallen for cleverly crafted and maintained lies about your legitimate role in society.
That with rights come responsibilities is widely if not universally accepted. So what is the responsibility that comes with the right to keep and bear arms? It is in the opening phrase of the Second Amendment. "Owning guns and complaining to your representatives being sufficient to the security of a free state,..." Right? Well that's what most gun owners seem to think.
For any who wish to take seriously the responsibility that comes with the right to keep and bear arms, I'd like to invite you to explore today's militia at http://www.awrm.org. We might surprise you, especially if you still believe what the mainstream media and groups like the SPLC say about us.
As long as you're praying, be sure to read Lk. 22:36 and ask God how this can be reconciled with the pacifism-only interpretation.
Peace.
I am no scholar of the 2nd Amendment, but it is striking to me that in this case the discussion focuses on a Scalia view of interpretation: finding out exactly what the framers meant in their context, and applying the constitution in precisely that way. If Breyer votes for the individualistic view, though, it seems to me it would be based on his own canons of interpretation set forth in Active Liberty--i.e., maximizing individual liberty. The problem of course is that in this matter maximizing each person's liberty sharply reduces the liberty of all.
"The problem of course is that in this matter maximizing each person's liberty sharply reduces the liberty of all."
I'm sure I've read a more nonsensical statement in my time, but I just can't recall it right off the top of my head.
I think the professor's "collective rights" reasoning is bogus (sorry, somebody had to say it).
In talking about attitudes during the time of the framers, I look at, for example, my home state's constitution:
From Article I Bill of Rights:
§ 4 Bearing arms; standing armies; military powers
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.
From Article IX Militia:
§ 5 Public arms
The General Assembly shall provide, by law, for the protection and safe keeping of the public arms.
In Ohio it is clear that the right to keep and bear arms is an individual right for the ultimate purpose of being ready to defend home and state. There is a clear distinction between private arms and public arms.
Ohio's Constitution I think accurately reflects the attitudes behind the Second Amendment to the United States Constitution.
As one of the attorneys filing an amicus brief at the invitation of respondents, I would like to take this opportunity to respond to Mr. Bogus.
The collective rights viewpoint is "bogus" history. You wave a magic wand, utter the incantation "militia purpose" and assume that the individual right disappears. There is no further analysis necessary, and please do not look at the man standing behind the curtain.
Let us assume a sole militia purpose for the 2nd. How does the 2nd protect that purpose? Does it require the feds to arm the militia? No, of course not. Does it provide a method whereby the states could arm the militia in the event of possible failure of the feds to do so. That may seem a logical assertion if one is completely devoid of any historical background on this issue.
First, the Virginia resolutions specifically suggested such an approach in their 11th proposal for general amendments to the constitution. This provision specifically provided an amendment allowing the states to arm the militia in the event the feds failed to do so. This proposed amendment was rejected by Congress. In lieu thereof, the 2nd was pattered after the 17th proposal of the proposed "individual rights" suggested by Virginia. This classification is a total refutation of the collective rights view. Virginia called it an individual right and it is foolish to argue otherwise.
Further, the historical precedent for the individual right arises not from efforts to disarm the militia of their militia weapons, but attempts to disarm the general populace of their individual weapons. That was the English Game Law which was enacted supposedly to prohibit illegal hunting but was used by James II as a ruse to disarm potential opponents of his authority and thereby prevent them from forming an effective militia.
So, even if we adopt a "sole militia purpose" we are left with an individual right which can be articulated thusly:
It protects that individual right, and by doing so it insures that regardless of what the fed does or does not do with the militia, there will always be a method of resurrecting the well regulated militia from the whole body of the people, who are adequately armed so as to use said arms in the state militia or to lend their arms to someone who is in the state militia.
Scalia got it exactly right when he stated:
"JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as as-- as a personal guarantee and reading the first one as assuring the existence of a militia... But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed."
Finally, I reject your contention that the phrase "keep and bear arms" was used in a strictly military context. Certainly, a strong argument can be made that "bear arms" has that connotation by virtue of the debates on the CO clause in Congress. However, the CO clause itself refutes a similar connotation for the term "keep arms". Keep is not mentioned in the CO clause whatsoever and the debates in Congress mention that point specifically. What we are clearly dealing with is two separate individual rights, one is to keep arms and the other is to bear arms.
So what is the derivation of the word "keep"? Again we must go back to the English Game Law which made it unlawful for the vast majority of the people to "keep" personal arms for the expressed fear that they might use these personal arms fro purposes of illegal hunting.
I am sorry Mr. Bogus, your magical incantation "militia purpose" does not convert an obviously individual right into a collective one. If you only will take the time to look behind the curtain and full examine the man operating the levers the individual right thesis is the only thesis which makes any sense in the historical context of the 2nd...
Bogus got one point partially right, " Research data do not support the conclusions that lives are saved by waiting periods, background checks, firearm training programs, or other programs that do not directly affect the number of handguns in general circulation." But gun BANS also INCREASE crime. You only have to look at Canada, England and Australia. And if a GUN BAN was "reasonable" and worked, DC would be the SAFEST place in the country, instead of being the MURDER CAPITAL for 15 of the last 30 years. Bogus should try doing the research FIRST instead of coming to a conclusion and then trying to justify it.
I have to agree that Justice Scalia has the correct argument. The 2nd Amendment is the people's defense against a tyrannical government or an invading force entrenching itself by regulating the militia out of existence (and by 'militia' I mean the true meaning of the word, a volunteer body composed of anyone willing and able to stand and fight for their freedom, not the organized State Militias). This could be done by restricting the people's right to keep and bear arms to the point that the militia of the People would be unable oppose either a standing army or a tyrant's armed supporters.
By the way has anyone else noticed that Bogus, claiming to be steeped in the history of the Founding era, made a pretty basic error regarding firearms. Daniel Boone used a rifle which, at the time, was primariliy a civilian arm, not a musket which was the military's choice of weapon.
So called "Collective rights" are what make slavery and oppression possible. I don't know why people like Prof. Bogus cannot see that clearly.
To say that there is a "Collective right" to anything means that there is no right at all. Governments do not need help passing oppressive laws, they do that on their own.
The historical record is replete with incidences of tyrannical usurpations that were perpetuated by the government unrelenting assault on the ability of its constituency to defend itself. The last line of defense for any citizenry is with arms.
I find it quite distasteful and inherently dangerous when any form of government justifies regulating to the point of abridgment quintessential inalienable rights, such as the "right to keep and bear arms," which are major elements of responsible civic government; with the guise that this is the only option to protect public safety. Washington DC ostensibly needs to reevaluate its public safety policy. Preferably enabling the arming of its law abiding citizens, improving the social infrastructure (such as education and housing) and increasing police power to protect its constituency lives, liberty and property.
So the right belongs to the people at the discretion of government?
The Second Amendment has no authority in this case. Congress has "exclusive" legislative authority over D.C.. Nothing in the 14th Amendment changes this fact. This case is another fine example of both sides having it completely wrong.
Carl Bogus' view is dangerous to say the least. He neglects to acknowlege the 9th and 10th Amendmends when interperating the 2nd. Furthuremore, his assertion that "to keep and bear arms" is a "collective" right, is ignorant of the context of the "bill of rights". They are "declaratory and restrictive clauses" to "extend the ground of public confidence in the Government". The people ratified the amendmends to declare and restrict the federal government. No clause of the 14th amendment changes this, except for specific provisions of the 5th.
D.C., under the authority of Congress, has the right to ban handguns in the city.
Prof. Bogus's argument is highly selective in its historical discussion and totally lacking in Constitutional analysis. To accept the Bogus argument that the second amendment means "don't disarm the militia" one must assume that the second amendment was designed to repeal Art. 1 Section 8's grant of power to Congress to arm and specify the training of the militia. Otherwise the right of the militia to have arms would be superfluous since Congress could determine what arms the militia was authorized to have, if any. Moreover, if this were the intent of the amendment as the Bogus argument suggests, the phrasing of the second amendment is a funny way to say it. Also Prof. Bogus never discusses that proposed amendments to provide that the states could arm the militias if the federal government did not pass. Nor does this Bogus piece explain why Madison proposed the second amendment and the other provisions of the Bill of Rights as part of the Art. 1, Sec. 9 which contains provisions protecting the rights of individuals, such as prohibitions on bills of attainder and suspension of the writ of habeas corpus. It is for these reasons why the justices likely appear to reject Bogus's collective rights view.