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Do you know what the Second Amendment actually says?
September 29, 2002 10:09 PM   Subscribe

Do you know what the Second Amendment actually says? UCLA Law Professor Eugene Volokh presents a remarkably clear, educated, and non-inflammatory explanation of the amendment, including plenty of historical references. As with my previous post (about Liberalism and Conservativism), I submit this not to promote a viewpoint, but to (hopefully) educate those who would debate about it.
posted by oissubke (33 comments total)

 
If you really want to educate yourself about a topic, you'd look at multiple sources for information, and not one, even if that one source is very thorough. You're promoting what's really only a start to an education on one particular topic, and a very daunting one for the uninitiated. Other scholars disagree with the professor on the collective rights question - or at least disagree with the the idea that it was originally an individual right - but you'd never know that from reading this particular piece.
posted by raysmj at 10:35 PM on September 29, 2002


Even as a layman I was struck by the second paragraph of the questionable jump from the "right of the people," to the interpretation of it as the right of the individual. One can easily presume that if they meant "individuals" they would have said so.
posted by semmi at 11:04 PM on September 29, 2002


It was not a jump, Semmi, it was a comparison to the language in three other ammendments that are usually understood to apply to individuals:
"...the right of the people peaceably to assemble..."

"The right of the people to be secure in their persons..."

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
As compared to:
"...the right of the people to keep and bear arms..."
I don't claim he is entirely right, but it was not an unsupported "jump."
posted by Nothing at 11:32 PM on September 29, 2002


"...the right of the people to keep and bear arms..."

Seems sparklingly clear to me. Is there actually a debate about this?
posted by hama7 at 1:12 AM on September 30, 2002


I'd give this argument to the gun rights people. I'm a liberal who has always questioned the NRA-style interpretation of the second amendment. But I find this argument to be very credibly constructed. I am always willling to give an opponent credit when his argument is sound.

I may not like it, but it is persuasive. The operative words of the amendment are "the right of the people to keep and bear arms shall not be infringed." Period. The bone of contention has always been that preface clause, which seems to imply that it is only for the purpose of keeping a militia, and, it has been supposed, only for that purpose. This article provides compelling evidence that the first clause is a very typically framed rationale for its period which supports the second clause without explicitly limiting it.

I still hate the fact that so many conservatives (e.g. Ashcroft) so often ignore, disparage and abrogate every other part of the Bill of Rights and honor only this one...
posted by George_Spiggott at 1:12 AM on September 30, 2002


Now if only if the kids in government schools would be taught this.
posted by ZupanGOD at 2:22 AM on September 30, 2002


"...the right of the people to keep and bear arms..."

Seems sparklingly clear to me. Is there actually a debate about this?


Yes there is, hama7, and there always will be until you accept that half a sentence isn't the same as the full one.

"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."

Is there actually a debate about this? Apparently so, unless half the country's hasn't been as "sparklingly clear" as you for last 210 years, give or take.

Am I taking a personal position here? No, even though I have one. I'm just saying that it's highly arrogant to claim there's no need for a debate on the merits of a idea that you don't even want to analyze the full text of.
posted by XQUZYPHYR at 8:45 AM on September 30, 2002


The bone of contention has always been that preface clause, which seems to imply that it is only for the purpose of keeping a militia, and, it has been supposed, only for that purpose.

That's a very plausible notion, but the information presented in the link leads me to believe that the issue isn't whether it's a militia right or an individual right -- it's that the individuals *are* the militia.

According to the current effective Militia act:

"The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

"The classes of the militia are --

"the organized militia, which consists of the National Guard and the Naval Militia; and

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

"Militia" has two meanings according to M-W, and the second one is "The whole body of able-bodied male citizens declared by law as being subject to call to military service."
posted by oissubke at 9:14 AM on September 30, 2002


I wonder - If we are to take a "strict constructionist" approach, shouldn't the right to "bear arms" include any and all weapons which can be carried? Isn't an "arm" a generic term for a hand held weapon? So.....flamethrowers, surface to air missiles, plastic explosives, small land mines, rocket propelled grenade launchers, not to mention those REALLY BIG machine guns (for the weightlifters).

My brother in Law works as a gun salesman for leading high tech gun manufacturer. He has lots of guns. I don't own any, but I'm a better shot than he is. Go figure.
posted by troutfishing at 9:29 AM on September 30, 2002


This site covers in detail the Liberal approach to the "individual right" argument.

To answer troutfishing's question:

The amendment simply states that the people have a right "to keep and bear" arms. It says absolutely nothing about regulating them for safety, design or caliber. The gun lobby argues that the lack of of such language means that individuals are free to own any arms they please, and government cannot use constitutional silence to infer permission to regulate them. But this isn't true; look at the First Amendment. It simply says that "congress shall make no law... abridging the freedom of speech" -- yet the government regulates countless forms of speech -- slander, malicious falsehoods, fraud, insider trading, etc. -- and these regulations are upheld by the Supreme Court. The same principle applies to the regulation of guns.

This point becomes especially important when considering the regulation of arms by category. For example: do the people have a right to own nuclear weapons? (Pro-gun advocates contemptuously call this the "nuclear straw-man argument," yet they have not even come close to providing a satisfactory answer to it.) How about chemical and biological weapons? Tanks? Battleships? Bombers? In a society where people get drunk, angry, jealous, self-destructive and mentally ill, you certainly wouldn't want the unregulated sale of nuclear weapons on the market. Prohibition of such arms seems like the best thing to do, but, strictly speaking, that too would be a violation of the Second Amendment.

Some pro-gun advocates admit that a literalist interpretation allows the right to keep and bear all arms, including nuclear weapons, and that this is surely archaic. Certainly the Founders could not have foreseen or intended this situation. However, pro-gun advocates claim the correct reaction of modern America should be to amend the constitution to exclude ownership of nuclear weapons; creatively interpreting the constitution is the wrong way.
posted by XQUZYPHYR at 9:36 AM on September 30, 2002


Militia:
1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

And people :
1 plural : human beings making up a group or assembly or linked by a common interest

Even if I don't really consider any definition of a word to be THE meaningful one, discarding other meanings, we should consider the popular meaning of the word people is "collection of human beings" , not necessarily citizens.
So anybody at any age, regardless of skin color, sex, religion etc . can own and bear arms in USA.

But the reason that supports the right is the necessity of a Militia, a well regulated one. Given that nobody really knows when we should consider a militia as well-regulated, given that there isn't a universal definition of "well", we should consider any collection of human beings regulated by some chain of command to be a Militia that can act during an emergency.

And the Militia is necessary to ensure the security of a free State. So that each and every State can have its own army regulated by a chain of command that probably ends with the State Govt.

And the right to own and bear arms is used to let a Militia exist without the need for a permanent militia , which we call Army ; it does not exclude a permanent one, just makes a temporary, call-when-u-need one, possible.

That looks good to me. A government can betray citizen expectations and even order an army to attack people.

But we still have a problem: how do we keep the guns away from criminals hands ?
posted by elpapacito at 9:50 AM on September 30, 2002


Fine, we can debate what the second amendment means til the cows come home, but that doesn't mean it is written in stone. The debate should probably be about whether it is time to add a 28th amendment.

Just as it never occurred to the original signers of the Constitution and Bill of Rights that women might want to vote or that slaves should be freed, so to they never could have envisioned our modern society-- and our modern weapons. Does anyone really believe that Thomas Jefferson would think it is every person's right to own a sub-machine gun with armor-piercing bullets?
posted by Secret Life of Gravy at 10:00 AM on September 30, 2002


I'm pretty anti-gun myself and I'll just leave it at that. The thing is when someone brings up the whole second ammendment argument as a reason we should not outlaw guns I always wonder why there is such argument about this. The most powerful thing our forefathers did when drafting the constitution is realize that they were not perfect and leave an ammendment process. They had no concept of an AK-47 on street corners when writing this. There is no reason why this ammendment can't be changed with future ammendments. It isn't carved in stone.

jeez
posted by bitdamaged at 10:01 AM on September 30, 2002


Was there then, at that time, a standing army and an income tax? Things change. I note that it was much simpler to ignore the fact of slavery than to discuss this as a right.
posted by Postroad at 10:37 AM on September 30, 2002


Does anyone really believe that Thomas Jefferson would think it is every person's right to own a sub-machine gun with armor-piercing bullets?

Gravy, please. This is a straw man. NO ONE believes it is every person's right to own sub-machine guns. Automatic weapons ('machine guns') have been very highly regulated in the US since the 1930's. The most recent data I'm familiar with is that there have exactly two murders committed with automatic weapons in the US since that time. This is a non-issue. Please frame the debate in other terms.
posted by Slithy_Tove at 11:12 AM on September 30, 2002


For the record, the American Revolution began over gun control.
posted by Beholder at 11:45 AM on September 30, 2002


XQUZYPHYR - thanks for the nutshell. "Some pro-gun advocates admit that a literalist interpretation allows the right to keep and bear all arms, including nuclear weapons, and that this is surely archaic." There's a nice resonance between this issue and Biblical literalism. Anyway, I would guess that an overwhelming majority of americans would agree with this position; maybe this is one way of reframing the debate. As in - where on the spectrum do we draw the line? It's always better to start from the point of greatest consensus.
posted by troutfishing at 11:50 AM on September 30, 2002


Slithy_Tove: NO ONE believes it is every person's right to own sub-machine guns.

You don't get out much, do you? There are a lot of people who believe precisely that. Go to a gun show or even a swap meet and talk to a few people, particularly ones with confederate flags on their hats. If you don't find one who owns fully automatic weapons, he'll point you to someone who does.

In 1787 there weren't even such things as revolvers or semiauto handguns. A muzzle loading pistol or musket is a very different thing than the simplest arms we use today. You couldn't carry it loaded for very long if you wanted to have any confidence that it would actually fire when you needed it. Once you did fire it, the most experienced hands could not get it ready to fire again in less than 20 seconds: triple that for most people. If it didn't fire, you would have to spend much longer preparing it to fire again.

Given that the very nature and utility of what we call "arms" were to change so dramatically in just the ensuing 50 years, it seems like the 2nd Amendment might just require congressional review. If they choose not to change it, that's fine: but when reality changes you must at least revisit your assumptions and determine lawfully and logically if they are still valid.
posted by George_Spiggott at 12:52 PM on September 30, 2002


Given that the very nature and utility of what we call "arms" were to change so dramatically in just the ensuing 50 years, it seems like the 2nd Amendment might just require congressional review.

Would you call for a similar review of the first amendment? The framers couldn't have anticipated the internet.
posted by hilker at 1:04 PM on September 30, 2002


hilker, the nature of speech has not changed. Arms are a manufactured artifact whose implications to balance of power changes with technology. Speech is as old as humanity, and its power is intrinsic to what is said, not to how it is disseminated.
posted by George_Spiggott at 1:09 PM on September 30, 2002


hilker, the nature of speech has not changed.

Actually, it has changed significantly. The internet gives everyone access to almost anything, including illegal pornography, bomb diagrams, instructions for chemical warfare, texts on how to commit credit card fraud, etc. Comparable things may have existed at the time of the drafting of the Bill of Rights, but they certainly weren't accessible by a six-year-old with a modem and ten minutes of spare time.

You can't argue that the second amendment needs review because people can get off two rounds in less than 20 seconds, but that the first amendment is just fine because people communicate the same today as they did back then.
posted by oissubke at 1:18 PM on September 30, 2002


I still don't see where you've established that the nature of speech has changed. "Arms" are artifacts. The artifacts that the word "arms" refers to are not the same as the artifacts it referred to in the amendment. They do different things and confer a different kind of power and utility.

"Speech" is not an artifact, it is a fundamental part of what it is to be human. A lie is a lie whether it is spoken, printed on an 18th century printing press or posted on the web.

Martin Luther and his followers broke the power of the Church in many countries, using only speech and the printing press, centuries before the constitution was framed. Speech has no more power now than it did then, nor any different nature. Gun have one hell of a lot more power now, and that power is different in nature.

(By the way, I am not in favor of repealing the 2nd amendment.)
posted by George_Spiggott at 1:38 PM on September 30, 2002


Beholder: "For the record, the American Revolution began over gun control."

The Revolution may have begun with shots fired, but it was not over gun control. Ever hear the words, 'No taxation without representation'?
posted by mikhail at 1:48 PM on September 30, 2002


The fact that you are writing about this and people around the world are reading it is a significant change in the medium of communication. Just as technology has granted me the ability to deliver a higher payload from a firearm, so has it given me the ability to communicate faster, better, and with more immediate and widespread consequences. The changes in speech and arms almost parallel each other. The fact that we're having this conversation from disparate locations due to technology is evidence that it's not just "a fundamental part of what it is to be human". You can speak out loud, but that's about it. The rest is technology.
posted by oissubke at 1:49 PM on September 30, 2002


As has been pointed out earler, we have laws that flout the second amendment, because we don't consider tommy guns, rocket launchers and grenades the same as the generic "arms" referred to in the constitution.

A 9mm semiauto is also not the same as the "arms" referred to in the 2nd amendment. Does the 2nd amentment therefore only protect the right to own a musket? Clearly we agree that is nonsense. Therefore, the amendment should be reviewed because we know longer know what we mean by "arms".

Speech is unchanged by the medium of its conveyance: slander is still slander, pornography is still pornography (more or less), sedition is still sedition. A change to the medium is not a change to the nature of speech, and no laws have been passed to make the same speech legal in one form and illegal in another.

So as a matter of law, including many laws that we all agree on, "arms" are a matter of interpretation as to technology, where speech is not.
posted by George_Spiggott at 2:00 PM on September 30, 2002


We're going in circles here. I invoke Godwin's Law: Hitler.
posted by oissubke at 2:13 PM on September 30, 2002


oissubke: We're not that far apart: I can live with the second amendment, indeed I have owned guns.

I would rather live in a country with too many freedoms than too few. We have seen vast suffering in the latter through all human history. We have precious few examples of the former, and the jury is still out as to whether the cost is too high.
posted by George_Spiggott at 2:17 PM on September 30, 2002


I would rather live in a country with too many freedoms than too few. We have seen vast suffering in the latter through all human history. We have precious few examples of the former, and the jury is still out as to whether the cost is too high.

Amen to that. We may differ to the degree that we think government should set up shop on the slippery slope of prohibiting certain liberties, but I think we can agree that it's a dangerous balance, and it's better to err on the side of freedom (even if some people use it to harm or offend others) than on the side of oppression.
posted by oissubke at 3:05 PM on September 30, 2002


Regardless of the debate over the application of the amendment, to individuals or to an organized militia like the National Guard, it is obvious that the "arms" in question are available military weapons. The amendment is not talking about hunting rifles and target practice weapons except insofar as their use implies an armed populace. Under the amendment, fully automatic weapons would definitely be covered, because they are military weapons, which is what a militia should have access to. That is the whole point. Arguments like "Jefferson didn’t have automatic weapons in mind" or "guns work better now" are irrelevant, a militia should have access to weapons of sufficient caliber to be useful in a battle. The real question is, do we still feel that a well-regulated militia is important? If it is not, then we need to scrap the second amendment entirely and create one that refers specifically to ownership of guns for target practice, hunting, and whatever else people think it’s important to be able to use them for. This deal of using the second amendment to justify sport shooting (which it only indirectly does), and then attacking it because "you don't need automatic weapons for sport" is ridiculous.
posted by Nothing at 4:26 PM on September 30, 2002


Does anyone really believe that Thomas Jefferson would think it is every person's right to own a sub-machine gun with armor-piercing bullets?

Let's ask TJ himself:

"We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & a half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted. "

- Letter to William Smith, November 13, 1787

Sounds to me like he'd be just fine with it, as long as those sub-machine guns were loaded.
posted by mikewas at 5:33 PM on September 30, 2002


Mikewas -- preach it brother!
posted by oissubke at 6:09 PM on September 30, 2002


While the debate over the Second Amendment and its interpretation will doubtless not be resolved today, one thing is certain: those in charge will always have the biggest guns.
posted by infowar at 8:07 PM on October 1, 2002


Visualize a world where the rich and powerful control all the guns. Now, class, what's our position on the Second Amendment, again?
posted by ZenMasterThis at 6:08 AM on October 2, 2002


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