Guns, well-regulated, are the right of the People

By
Monday, December 3, 2007

In last Thursday’s edition of the News, I tried to articulate a meaningful difference between Supreme Court jurisprudence and the human costs of gun violence. In response to criticism, I feel compelled to offer a more formal justification for my understanding of the Second Amendment.

The Second Amendment protects “the right of the people to keep and bear Arms.” Contrast this language with that of the Fifth Amendment (“no person shall”) and the 6th Amendment (“the accused shall”). The Bill of Rights makes a meaningful distinction between the rights of “the people” and of “persons.” This distinction is especially clear in the 4th Amendment, which states that the collective “people” have a right “to be secure” in their individual “persons.” The Second Amendment contains only the collective language: “the right of the people.” Despite any protestation to the contrary, the text of our Constitution does draw a significant distinction between collective and individual rights.

When the 2nd Amendment was ratified, the “Militia” did of course consist of virtually all adult (white) males — as Yale Law School professor Akhil Amar ’80 LAW ’84 points out, we should understand the “the Militia” and “the People” as roughly equivalent. But using such an understanding to justify unlimited gun rights grossly oversimplifies the 2nd Amendment language referring to a “well-regulated Milita.” It’s difficult to argue that a populace with unlimited access to guns constitutes a “well-regulated Militia” for the simple reason that such a populace is not “regulated” at all where weapons are concerned. The inclusion of the words “well-regulated” in the 2nd Amendment should leave us with two questions: Regulated by whom? And what sorts of regulations are permissible?

The Bill of Rights was an anti-Federalist measure designed to place explicit limits on the Federal government, generally in favor of state governments. Indeed, the 1st Amendment (at the time of its ratification) did not invalidate state-established churches or state sedition laws — it refused federal Congress the ability to establish an official religion and restrict freedom of speech. Considering that at the time of the Founding functional militias were often organized by states — and considering that the Bill of Rights as a whole was originally intended to protect the states from federal excess — it is reasonable to say that “well-regulated Militia” can be understood as one organized by and subject to the regulations of a state or local government. It’s much more difficult to claim that a mass of citizens armed with whatever weapons they desire constitutes in any way a “well-regulated Militia.”

The Constitution does not permit “regulation” that would effectively ban weapons — such laws would violate the right to “keep and bear Arms.” But should we believe that state and local governments can therefore pass no laws regulating the kinds of weapons that their people are permitted to own and carry? Such a holding would threaten anti-terrorist statutes prohibiting the ownership of bomb-making materials. Doesn’t it stand to reason that local governments can pass laws restricting ownership of certain categories of dangerous weapons? Shouldn’t elected officials be permitted to make legislative findings that unlimited handgun ownership poses a risk to public safety and legislate accordingly? The Supreme Court has historically shown broad deference to the “police powers” of local governments to protect the health or safety of their citizens. The law at issue in D.C. v. Heller does exactly that. Some people may contest the findings underpinning the law, or they may believe that it’s simply bad policy, but our democratic system provides recourse for those folks: elect new leaders.

The Second Amendment has never been subject to the Fourteenth Amendment doctrine of incorporation — a long-term judicial effort to protect certain enumerated rights from both state and federal infringement. Perhaps the right to keep and bear arms is conspicuously absent from the incorporation doctrine because the Second Amendment does in fact explicitly permit local regulation of the “Militia.” Much as the First Amendment right to assemble is constrained when it threatens public safety (I have no constitutional right to stage an anti-gun protest in the middle of I-95, for example), so too the Second Amendment right to keep and bear arms is constrained by the right and duty of local governments to protect their citizens. This is hardly a radical view. It’s a notion that comes straight from the language and history of the Second Amendment and previous Bill of Rights jurisprudence.

I recognize that I haven’t responded to the counterargument that more guns actually promote safety. While my understanding of the available evidence leads me to disagree with this assessment, I will say only that the debate about the purpose and role of weapons in contemporary America is best left to our elected bodies rather than our unelected courts. The interpretation of the Second Amendment outlined above allows the weapons controversy to be decided by our publicly accountable legislatures — an advantage that prevents the specter of “activist jurisprudence” from hanging over this country’s understanding of gun rights.

Xan White is a junior in Pierson College. His column usually runs on alternate Thursdays.

Comments

  • Anonymous

    When you consider the phrase "the people" used in other parts of the constitution it is referring to individuals. Why should "the right of the people" in the second amendment be any different? As far as one saying that death is the human cost of misreading the 2nd amendment it is. People have no way to defend themselves from certain death because the D.C. City Council misread the 2nd amendment and now only the criminals have guns.

  • Anonymous

    “it is reasonable to say that “well-regulated Militia” can be understood as one organized by and subject to the regulations of a state or local government.“

    Sorry. This is not so.

    By ''well regulated'' it was meant at that time to mean 'in proper working order':

    http://www.constitution.org/cons/wellregu.htm

    This is the proper usage as understood at that time. Therefore, if you are a conservative and ''strict constructionist'' as principled conservatives are supposed to be but often are not, this is the interpretation you would prefer.

    This means that people should have the right to keep and bear weapons to protect themselves from government imposed evils. On that basis, the people of Los Angeles should have weaponry and the right to blow away criminally racist punks like Mark Fuhrmann so that they may remain secure in their persons.

    Agreed?

  • Anonymous

    Unfortunately, the author does not appreciate that the meanings of words in English have evolved and changed over time. This leads to his fatal error of basing his argument on present day usage.

    The fact is that in the 1800s, when the Bill of Rights was created, the phrase "well regulated" actually connoted "well practiced, good working, well disciplined.

    Thus, the phrase "well regulated" has nothing to do with the very modern association of regulation with government oversight or interference.

  • Anonymous

    "I recognize that I haven’t responded to the counterargument that more guns actually promote safety. While my understanding of the available evidence leads me to disagree with this assessment,…"

    Xan, I challenge you to provide the exact evidence that you have researched to come up with that assessment. It sounds exactly like you didn't do the research and just blindly repeated the mantra of every anti-gun group out there. For the sake of journalistic integrity, please let us know what "evidence" you've seen and what kind of research you've done behind the numbers.

  • Anonymous

    So then by this logic, the document that begins "We the People.." doesn't really pertain to each person individually but only to the collective in general, and thus means that certain persons or subgroups may not be entitled to enjoy those benefits described therein. So let's bring back slavery and other discriminations to correct the error of our mistaken interpretation of the true meaning of "the people".

    Give me a break.

  • Anonymous

    You know, laws that violate "the people's" 2nd ammendment right to bear arms are a lot like Uninsured Motorist Coverage laws: the uninsured are still driving around uninsured and the good law-abiding citizens are paying for those individuals who shirk their civic responsibility.

    When the guns are outlawed, only the outlaws will still have guns, leaving the good law-abiding citizens again to pay and to be at the disadvantage of those who shirk the law.

  • Anonymous

    "A well-educated electorate being necessary to secure sound governance, the right of the people to keep and bear books shall not be infringed."

    The militia is a promise which arms keep. The flight 93 passengers were a well-regulated militia, formed ad hoc, and more successful at defending you and me than the entire US law enforcement apparatus. Their unconstitutionally enforced vulnerability forced them to sacrifice themselves during their successful militia action, rather than kill or subdue their attackers.

    The shoe bomber was disarmed before he could attack the US by a well-regulated militia of two flight attendants. New Orleans residents formed ad hoc well-regulated militias to secure their free state after Katrina, despite the violation of their individually pre-existing right to arms.

    "…a mass of citizens armed with whatever weapons they desire” is exactly what the framers were protecting, as you yourself say, before contradicting yourself a few paragraphs later ("we should understand the “the Militia” and “the People” as roughly equivalent.") by a contrivance.

    The framers themselves 'simplified' the language (see the texts here: http://rs6.loc.gov) themselves. There is no need for us to 'simplfy' it any further, except for those who have never bothered to take a course in 18th century grammar:

    "The right of the people to keep and bear arms shall not be infringed, because a well-regulated militia is from time to time necessary to secure a free state and because all the people must be prepared to act when called."

    The 2A not only protects your right to be armed, it assigns you a DUTY to be armed. Your argument is an argument to shirk that duty by local popular vote. Even two disarmed flight attendants smaller and weaker than their foe have a better sense of responsibility.

  • Anonymous

    Would you believe me if I told you that the definition or usage of words change over time? A well regulated timepiece doesn't refer to a government entity passing laws or rules on it. It simply means it is running well…
    B in Austin

  • Anonymous

    The right to bear arms is an essential check on government; if the people couldn't have arms, there would be nothing to prevent tyrannical rule.

  • Anonymous

    The Bill of Rights concerns itself with Individual Rights. People have Rights; Governments have Powers.
    The Tenth amendment specifically refers to the Powers of the United States and the Powers of the States. Individuals have Pre-Existing Rights that are recognized by the United States Constitution. These pre-existing Rights of the people are not Granted to the people by said documents.

    The Second Amendment is actually written in extremely strong language compared to, for example, the First Amendment.
    Amendment #1 simply states that Congress shall make no law ….., but does not preclude an excutive order, whereas the second amendment states in iron clad words: "…The right of the people to keep and bear arms, shall not be infringed."
    The second amendment leaves no wiggle room for rogue Executive Orders or Judicial decisions.

    I also would like to see your data that refutes the thoroughly researched work of Professor John Lott which clearly demonstrated with County Level Data from across the entire country that More Guns = Less Crime. In today's environment it is far too easy for your readers to check on such unsupported statements as yours and to classify them as "Urban Legends" and myths of the "Drive-By" Media.

    Roy in Ohio

  • Anonymous

    Hey Xan,

    You did not answer my questions from last week or from this one.

    Why not give me one or two replies?

    BTW, I have a law degree, know the subject quite well, and await the courtesy of a reply.

  • Anonymous

    While this is all back and forth about the same thing without saying anything. Lawyers, probably. Look, Americans, that is U.S. Citizens, have rights. If that is agreed, then we have enumerated and non-enumerated rights, is that also agreed? The States and the Federal Government were both given specific and enumerated rights in a document we all cherish. In those there is no question that they were very specific and identified so that those that weren't would remain either with the States or the individuals as citizens. The purpose was, as anyone in this discussion should remember, to purposefully underscore the fact we, as free people, would not be subject to Hillary Clinton or any other Queen, or King in the future. We were given the rights needed - free press, speech, assembly, arms, and so on (read the news tonight and see if you can find a place where these aren't allowed, and where they are fighting for them, hint:look south for an oily looking Venezuelan, and around the world for a greasy looking ex-KGB)so we could keep our government in check - them knowing we could be a real problem for the govern by those governed. Know this. Live this.

  • Anonymous

    "I will say only that the debate about the purpose and role of weapons in contemporary America is best left to our elected bodies rather than our unelected courts"

    GREAT! I will say
    I will say only that the debate about the purpose and role of SLAVERY in contemporary America is best left to our elected bodies rather than our unelected courts, Hey! as a matter of fact some states would ban abortion and "race mixing" and imprison gays if it were not for those pesky courts!
    Thank you so Xan for agreeing with some of the most repugnant elements of society.
    Those darn Courts done ruined whites only schools and stuff.

  • Anonymous

    Xan.
    "When the 2nd Amendment was ratified, the “Militia” did of course consist of virtually all adult (white) males"

    Was Crispus Attucks a slave?
    How about all the black men who fought in the Revolutionary War? If they were not slaves and were not in the Militia and not in the Army, then what the heck were they doing on the battlefield?
    I should apply to Yale, even with my G.E.D I seem to know a lot more about history then most recent college grads I meet.
    My girlfriend has a law degree from a respected school, she didn't know the difference between the Confederacy and the Union.
    When anti gun groups come up with a coherent factual debate I will applaud, I despise giving history lessons to everybody I talk to!

  • Anonymous

    The following phrase is way off base. "Much as the First Amendment right to assemble is constrained when it threatens public safety (I have no constitutional right to stage an anti-gun protest in the middle of I-95, for example), so too the Second Amendment right to keep and bear arms is constrained by the right and duty of local governments to protect their citizens." It is true that government is supposed to protect us, but not by taking away our God given rights. If you believe in the statement above; then why doesn't the government lower the speed limit nationally to 45mph; no matter what road you are on. Just think of the lives that would be saved and the safety of such a law. I know why they do not do it. It's because they do not really care about safety as much as they do control. Mike irmantis57@yahoo

  • Anonymous

    Where to begin? The phrase "keep and bear arms" sprang from the British assault on Concord and Lexington, where arms were stored in government arsenals.
    There was a legal duty to serve and a right to possess arms before 1620, in the New World, that became a right to keep and bear arms so that the people could defend themselves against any enemy, whether criminal, alien invader or government tyrant.
    Perhaps modern language would read thusly… An armed citizenry is essential to the desired form of freedom known as a free state, therefore the absolute right of the people to keep arms in their own control and to carry those arms for defense and other lawful purposes in necessary to the secuity of a republican form of government and shall not be infringed.
    As the saying says about blind people and eyes, "In the land of the disarmed, the man with a gun is king and if he has a gang, he is a coup."
    James Macklin http://www.geocities.com/ks2ndamendmentsociety

  • Anonymous

    Another well intentioned but frail expert on what the founding fathers intended.

  • Anonymous

    RE: "The right to bear arms is an essential check on government; if the people couldn't have arms, there would be nothing to prevent tyrannical rule."

    Ok Neocons and the like, please take me on the fantastic journey that seems to pervade your collective imaginations which has Hillary/some future democratically elected leader taking over the White House and becoming a 'tyrannical' leader out of nowhere. I mean just give me the outright ridiculous scenario so that we non Conservs are at least on the same page. Are you imagining, for example that a democratically Elected Hillary, might enter the White House - decide she's going to stage some sort of ultrafuturistic coup, become “Queen”, turn the national military (perhaps via a letter or public announcement) into her weapon of choice, dismiss Congress and the Supreme Court – she, her peers in the White House and the national military will ignore all governmental checks and balances and leave the federal government in DC and abroad stricken and subject to her tyrannical rule.

    But no worries, even in the worst doomsday scenario – the gun-toting militia, led by the commenters on this page no doubt, will gather at the flag pole, guns ablaze and take back the federal government from the illegitimate tyrant. Im sure, then, all of us idiot liberals who support measures taken by NYC and DC to limit perpetrators’ of BOTH domestic and criminal violence access to guns will bow to our superior conservative counterparts and thank God that they kept their assault rifles close by for just such an occasion.

    I mean, when you reply ignore my tone, I just really cant imagine what you all are thinking MIGHT happen TODAY (I have an idea of why the forefathers were concerned about this in 18th century post-colonial America)– so give me a great (meaning = plausible) example of what you all are concerned about so that I understand your perspective better – that’s all.

  • Anonymous

    No reply to our of our queries.

    Hmmm, why am I not surprised??

    It is obvious that Xan has only a superficial knowledge of this topic. While he is entitled to his opinion (one that is obviously VERY flawed) I see no real purpose for this publication to allow him to palm himself off as some type of expert in the subject.

    Merely posting such an uninformed article without having any form of reasoned discussion makes the writing worthless. Unless Xan makes some effort to address the many queries he has ignored (which obviously come from people far more informed than he) these articles have no value.

    May I respectfully suggest that YDN allow someone else to have this forum space so that we can have a more intelligent discussion on this and similar topics?

  • Anonymous

    Why do all the other amendments refer to the rights of individuals except the 2nd? How convenient for the anti-gun crowd! Wait till they come for free speech? The 2nd amendment is the "Teeth" for ensuring we keep the rest of them.

    There is no safety in denial. Sheep merely tolerate the sheepdogs until a wolf comes along, they then all run behind him for protection…

  • Anonymous

    "The right of the people to be secure"
    1) in their persons
    2) housed
    3)papers
    4 and effects

    is NOT A PERSONAL RIGHT?

    Of course it is a personal right or else it is no right at all.

    So too, "… the right of the people to keep and bear arms …" is also a personal right.

    Notice that the Second Amendment states:

    "A well-regulated militia…" It does not say "A well-armed militia…"

    The key to understanding the framers intent is to know of their fear of and rejection of a state funded militia, because such a militia would be beholden to and serve the intersts of the state that pays them, rather than the people.

    Today's state reserve forces is closer to a state funded militia than it is to the founders concept of a citizen militia acting to preserve and protect their own interests.

  • Anonymous

    another reason why maybe everyone having a gun is NOT a great idea

    http://www.wmur.com/news/14872365/detail.html

  • Anonymous

    Xan,

    Your "fiercely nonpartisan" perspective is not "well-regulated" unless your are properly informed:-)

    There is much scholarship on the 2nd Amendment. If you were to read just a sample of it you would learn that the interpretation you oppose is so well supported as to be called the "Standard Model."

    I am not saying that there is no argument against the Standard Model. However, your interpretations for "well-regulated" and individual vs. collective rights are classically identified garbage.

  • Pingback: Carmicheal Jits

  • Pingback: How to Win Friends and Influence People Digital PDF

  • Pingback: แทงบอลออนไลน์

  • Pingback: meet up with you

  • Pingback: My Blog about cigarette dangers

  • Pingback: แทงบอลออนไลน์

  • Pingback: How to Win Friends and Influence People For Teenage Girls PDF

  • Pingback: how to win friends and influnce people

  • Pingback: Securities Arbitration Attorney

  • Pingback: distilled vodka

  • Pingback: 一切都是伪原创

  • Pingback: nicotine addiction

  • Pingback: sproutkin

  • Pingback: http://higaku25.pen.io

  • Pingback: Christian Louboutin Sale

  • Pingback: read more

  • Pingback: bad robotic surgery

  • Pingback: body magic shaper

  • Pingback: http://riben32.tumblr.com

  • Pingback: Man of Steel Official Trailer 3

  • Pingback: buy zithromax

  • Pingback: Rosetta Stone Discount

  • Pingback: Christian Louboutin Outlet

  • Pingback: red boots women

  • Pingback: imitaton rolex

  • Pingback: Credit Score Range Blog

  • Pingback: Jocuri

  • Pingback: Dental implants dublin

  • Pingback: click here

  • Pingback: buy clomid

  • Pingback: free music

  • Pingback: buy champix

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: buy synthroid

  • Pingback: go here

  • Pingback: Megan Fox Hot

  • Pingback: Megan Fox Hot

  • Pingback: phen375 reviews

  • Pingback: dr dre beats

  • Pingback: As in well-nigh over-the-counter industries, the cookware industry are constantly coming out with new lines and innovations

  • Pingback: red angel hair

  • Pingback: sites

  • Pingback: beast 123

  • Pingback: "best at home business

  • Pingback: Lucas Medellin

  • Pingback: crowd control barriers for sale

  • Pingback: "customs house museum

  • Pingback: driving instructors in maidstone

  • Pingback: unique hoodia reviews

  • Pingback: "home business ideas for women

  • Pingback: My site

  • Pingback: Just Some Thoughts on My Site

  • Pingback: Private Education Loan Consolidatio

  • Pingback: free

  • Pingback: cash advance loans

  • Pingback: source

  • Pingback: [source]

  • Pingback: luminess air ingredients

  • Pingback: payday loans direct lender

  • Pingback: http://www.wgt.com/members/ligicest/default.aspx "ravensburger

  • Pingback: "puzzle museum

  • Pingback: Are you suffering from eczema? Does your skin itch constantly to the point of burning? It is a fact that eczema is an uncomfortable disease which requires prompt

  • Pingback: "new york cleaning services

  • Pingback: luminess air review

  • Pingback: my company

  • Pingback: Real Estate University

  • Pingback: Hotele w Rzymie

  • Pingback: "how to make money fast

  • Pingback: "4g wireless networks

  • Pingback: "seo cost

  • Pingback: Renewable Energy Home Energy Saving Tips

  • Pingback: Mortgage Quote

  • Pingback: KD mortgage advisor

  • Pingback: "work at home business ideas

  • Pingback: "andrew reynolds the end

  • Pingback: plakate drucken

  • Pingback: Forescent

  • Pingback: payday loans las vegas

  • Pingback: online tree nursery uk

  • Pingback: cash advance las vegas

  • Pingback: "can you make money online

  • Pingback: "the bussiness

  • Pingback: "altamont andrew reynolds

  • Pingback: Global Test Market Review

  • Pingback: Global Test Market Review

  • Pingback: Global Test Market Review

  • Pingback: Global Test Market Review

  • Pingback: vanuatu holidays

  • Pingback: Global Test Market review

  • Pingback: Global Test Market review

  • Pingback: "seo firm

  • Pingback: "nyc maid service

  • Pingback: cash advance houston

  • Pingback: clicking here

  • Pingback: Access Florida Login

  • Pingback: Work at home digital

  • Pingback: more information

  • Pingback: clicking here

  • Pingback: slimming lida

  • Pingback: 4 Hour Millionaire

  • Pingback: african mango scam