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Trouble ahead: Justices’ rulings on gun rights raise thorny questions

REUTERS/Yuri Gripas
Plaintiff Rich Heller, surrounded by activists with the Brady Campaign for gun control, stand outside of the Supreme Court on June 26, 2008.

Last of three parts.

Former Chief Justice Warren Burger (who was so devoted to the U.S. Constitution that he retired from the high court in order to lead the national celebration of the Constitution’s bicentennial in 1987) gave an interview on the PBS “Newshour” in 1991 in which he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public.”

Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.

Even if you buy into the idea that the Second Amendment created an individual right to be armed, a host of intermediate questions arise. Does the right to bear arms extend to any weapon or can Congress or a state legislature ban certain types of weapons from private ownership, and if so, which types? Before 2008, only one U.S. Supreme Court case offered a small, confusing stab at how that might work. The language of the amendment offers no guidance.

Can any categories of individuals —  criminals, people with mental health problems — be barred from possessing weapons? If so, what are the boundaries of those categories of individuals whose Second Amendment rights can be infringed? No one can give a precise answer even though those questions are front and center in this post-Newtown moment.

Through what kind of hoops can a person seeking to buy a gun be constitutionally required to jump? This question is ripped straight from the headlines. The one gun-control idea that seemed to have the most potential of passing in Congress in the post-Newtown moment (although it had a very bad day Wednesday in the Senate) would be a requirement for universal background checks of would-be gun purchasers. A compromise version of that law (which actually isn’t universal but does close the so-called “gun show loophole”) has been worked out by two pro-gun senators across party lines. But the NRA says that law would limit “fundamental Second Amendment freedoms.” Would it? President Obama says that none of gun control measures he supports – including some that go much further than Manchin-Toomey – “would subvert the Second Amendment.” Who is right? No one can say.

Widely held view

Chief Justice Burger was expressing what was then a widely held view (outside of NRA circles), and he stated it with such force that you might have assumed he had some Supreme Court jurisprudence to back him up.

But that was not the case. In fact, no Supreme Court ruling had clearly addressed the key issue of whether the right to keep and bear arms was a right of all individuals, a right tied to service or potential service in a militia members or a collective right of each state to have an armed militia.

Despite the fact that the Second Amendment had been around for two centuries, and the fact that the federal government had indeed banned certain classes of guns (machine guns and sawed-off shotguns, for example, after gangsters started using them), the Second Amendment produced only one significant Supreme Court case (see the Miller case below) and none in which the courts struck down any federal, state or municipal gun control measures. This is at least a little odd, since the language was in the Constitution all along.

The Miller case

The only big case in the amendment’s first 200 years was U.S. vs. Jack Miller (1939), which is a wild, wooly tale that did little to clarify the meaning of the Second Amendment. Miller was a mobster, a killer, and a confessed bank robber who ratted out his fellow gang members in exchange for immunity from bank robbery prosecution and then was charged with illegal possession of a sawed-off shotgun. Miller challenged the charge on grounds it violated his Second Amendment rights. (If you read the Supreme Court ruling, you won’t even find this stuff out, nor the fact that Miller had been murdered, perhaps in retribution for the aforementioned ratting out, before the Supremes ruled on his Second Amendment claim.)

The court unanimously upheld the National Firearms Act, which banned the favorite weapons of gangsters, including machine guns. If the court had ruled that Miller had no right to keep and bear a sawed-off shotgun because he was not a militia member, that would have been a big deal. But instead it ruled that:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship  to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

If you read that language, as some have, to mean that the “arms” Americans have a right to “keep and bear” are limited to those that might come in handy to a militia member (whether or not the individual belongs to an actual militia), the court got a big fact wrong. Apparently short-barreled shotguns could be (and have been) useful in some military situations. But, since Miller was dead and had no lawyer arguing for him at the Supreme Court, that point was not made in the briefs or arguments.

Gun-control advocates and gun rights advocates have claimed Miller as a victory. If you are for gun control, what you note is that the Supreme Court had upheld a major federal gun control law. If you are for gun rights, you note that the court implied that, if he had had an appropriate militia-relevant weapon, Miller would (or might) have been constitutionally entitled to keep it. In other words, it suggested that an individual (not just a state and not just a militia member) has a Second Amendment right.

But if you read the quoted language (above) carefully, it says that the kind of weapon Miller might have had a right to possess is not just something that could be fired in a military confrontation but a weapon that “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” There are about five new terms in that phrase (“preservation,” “efficiency,” “reasonable relationship” and the original “well-regulated militia”) that mean virtually nothing unless the court decides to say what they mean, which the court did not. On its face, it would seem that individual has a greater Second Amendment right to possess a howitzer, a mortar or an AK-47 (since those have obvious military applications) than a handgun or a hunting rifle.

My conclusion: The Miller case took the mess left behind by the Framers of the amendment, added some language that clarified nothing, and left a bigger mess, after which the Second Amendment disappeared again from Supreme jurisprudence for seven more decades, until the case of District of Columbia vs. Heller, which the High Court decided in 2008.

The Heller case

In the Firearms Regulation Control Act of 1975, the Washington D.C. City Council effectively outlawed the possession of handguns in the district. Dick Heller was an actual D.C. special police officer who carried a gun when he was working but was not allowed to have one in his home. (Heller is pictured at the top of this post.) He became the named plaintiff in a 2003 lawsuit challenging the handgun ban. It made it to the Supreme Court in 2008, 219 years after the Second Amendment was written.

A coalition of five justices – the usual four solid conservatives plus swing Justice Anthony Kennedy – struck down the District’s handgun ban as a violation of the Second Amendment. For the first time and only by a bare 5-4 majority, the court said bluntly that individual Americans have a constitutional right to keep and bear arms, whether the citizens were members of any militia or not, and whether the weapon they possessed had any military application.

Writing for the majority, Justice Antonin Scalia was characteristically blunt:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.

The Supreme Court had never said anything like that before. It was the opposite of what Chief Justice Burger had thought, but Burger expressed himself in a TV interview and Scalia expressed himself in a ruling that, under our system of “judicial supremacy” on matters constitutional, is now the law of the land.

So does the Scalia doctrine mean that every individual — mental health and/or criminal history notwithstanding — has a right to “keep and bear” any “arms,” from a handgun (which is clearly and explicitly ruled in) to a bazooka? No. Just as the right of free speech is not unlimited, the constitutional right to possess weapons is likewise subject to some limits, Scalia wrote. The trouble is, we don’t know what the limits are. Wrote Scalia:

Nothing in our opinion should 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.

Scalia squared his view with the Miller precedent by adjudicating thus:

We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Scalia talks a good bit about the 1780s and 1790s, and claims that he is being guided in some sense by what he calls the amendment’s “prefatory clause” about the importance of maintaining a militia. But, in the end, the new Scalia/Heller doctrine turns the militia language on its head. The original purpose was to arm ordinary citizens with the weapons they would need to militarily preserve “the security of a free State.” In today’s environment, that would suggest that an assault weapon or a grenade launcher or an attack helicopter would be more useful than a handgun or a hunting rifle. But, after passing through the Scalia prism, the Second Amendment seems to rule out the right to have the most militarily useful weapons and rule in the least military useful weapons that law-abiding citizens typically use for lawful purposes – like a handgun to defend one’s home or a rifle with which to hunt deer.

I don’t know how many MinnPost readers ever read a full Supreme Court ruling. (If you want to read the Heller ruling, it’s right here.) They can actually be pretty lively, in this case because some members of the ideologically torn court are quite willing to mock one another for alleged idiocy. Scalia, for example, weaves in his plurality opinion a mocking of the minority opinion, written by (now former) Justice John Paul Stevens.

Stevens argued that the Scalia ruling was overturning the Miller doctrine (that the key to the Second Amendment was the right to possess weapons that have “some reasonable relationship  to the preservation or efficiency of a well regulated militia,” and that Officer Heller’s desire to keep a handgun in his home doesn’t qualify). Scalia goes right after Stevens’ interpretation:

Justice STEVENS places overwhelming reliance upon this Court’s decision in Miller. “Hundreds of judges,” we are told, “have relied on the view of the amendment we endorsed there, and even if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself … would prevent most jurists from endorsing such a dramatic upheaval in the law.” And what is, according to Justice STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.”

Nothing so clearly demonstrates the weakness of Justice STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that…

…This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” but the words of the opinion prove otherwise.

Scalia is aware of the possible absurdity of applying a law on weaponry, written in the time of muskets and militiamen, to a world of drones and nukes and a permanent standing army. Here is how he dealt with it (I can’t say it works for me):

It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Finally, Scalia purports to have some sympathy for anyone who might believe that a handgun ban would be of benefit in a 21st-century nation that has more gun violence than other developed nations. But, unfortunately, that’s beyond his humble job description. His job is to say what the Constitution means and most especially what it meant when it was written. And, with some regret, he is compelled to divulge that he has ascertained (through a method that some skeptics have called “historical ventriloquism” in which the members of the founding generation are used as dummies to express the views a justice needs them to express) that the authors and ratifiers of the Second Amendment meant to prohibit the District of Columbia from banning handguns.

In the Heller ruling, here is how Scalia deals with the inconvenience of ruling off the table measures that some jurisdictions might think would help with the problem of gun violence. And also, at the end of the excerpt below, he reaffirmed that there is no such thing as a constitutional provision withering away by reason of obsolescence:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici [meaning those who submitted “friend of the court” briefs in the case] who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Historian Saul Cornell of Fordham University, a scholar of Second Amendment history, is an outspoken critic of the Scalia style of (what Cornell calls) “new originalism.” Cornell suggests that the new originalists manipulate the history to get the result they want and then claim with great faux modesty that they have no policy-making role, but are mere vessels for enforcing the only legitimate reading of the Constitution, namely the Constitution as it was meant and understood by those who wrote and ratified it. Wrote Cornell:

New originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document — a strange coincidence indeed!

In a 2012 piece reflecting back on Heller, Cornell went even further in accusing Scalia of manipulating 18th century to get his result:

“If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.”

Stevens strikes back 

In case you found yourself worried about poor Justice Stevens, being accused of various forms of numbskullery by Justice Scalia in public, and in ALL CAPS and in a ruling that will be studied for years, worry not. His tone is a tad lighter, but he also can dish it out. (Of course you need to break the fairly weak code to know that whenever Stevens wants to insult Scalia, he calls him “the Court,” since Scalia’s ruling spoke for the court in this matter. Wrote Stevens, for example:

 The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution [See Scalia’s “enshrinement” passage just above.] But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment…

Stevens (and the three other liberal justices who signed his dissent) subscribes to Warren Burger’s view that the Second Amendment is fundamentally about militia-oriented rights:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution…

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in 1689 English Bill of Rights, and in various 19th-century State Constitutions; post-enactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

… without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

In case Stevens’ indirect tone caused you to miss it, in that that last bit — acceptable advocacy, but surely an unusual approach for judges to follow — Stevens is accusing Scalia of abandoning judicial neutrality and writing as if he was Heller’s lawyer.

Stevens also made a dire, but obvious, prediction that, as a result of the Heller ruling, the court would have to make more rulings to establish the precise boundaries what level of gun regulation is permissible. The doctrine that “law-abiding” citizens can possess the kinds of weapons that they typically possess for “lawful purposes” raises far more questions than it answers. For example, to lift an obvious question from the gun control debates of the moment, would a ban on high-capacity magazines that allow a hunter (or a mass murderer) to fire 50 rounds without reloading be constitutional? Could the federal government ban assault weapons (such weapons were banned in the 1990s, but that law expired in 2004 and its constitutionality was never tested)?

Scalia went out of his way to say that the Heller ruling should not “be taken to cast doubt” on longstanding elements of the current weak and porous gun-control regime. But won’t the elements have to be tested, one by one, until the new (or, Scalia would say, the old, originally intended) individual right has been refined? Here is how Stevens described the new reality:

 Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

In the 2010, the same five conservative justices took the next step, in the case of McDonald vs. Chicago, and ruled that the Second Amendment right, as described in Heller, applies not only to the federal government (and the federal enclave of Washington D.C. counts, for this purpose, as part of the federal government) but also to states and municipalities.

The Bill of Rights, when it was adopted, limited only federal action. But since the 1920s, the Supreme Court has gradually, right by right, required that states also respect the rights that were deemed to be fundamental and “of the very essence of a scheme of ordered liberty.” Most of the Bill of Rights was gradually incorporated to the states but the right to bear arms was one of the few that never had been ruled so fundamental. In 2010, it was so ruled.

The power of the gun lobby over Congress seems to be so great at the moment that the NRA doesn’t real need the Supreme Court as a final backstop against any congressional gun control measures. But that’s not true of some relatively blue states that have been passing some laws restricting the absolute right of individuals to have and to conceal/carry around certain catgegories of  weapons.

The combination of Heller and McDonald makes the Scalia “law abiding citizens for lawful purposes” doctrine apply to the states as well as the federal government. So the current state of play is something like this. The Supreme Court is now available as a Legislature of last resort for the gun lobby. Five justices (all of them nominees of Republican presidents) can for the foreseeable future decide what weapons are covered by the Second Amendment right, what restrictions of categories of individuals are constitutional and what requirements for background checks are permissible. Four justicves (all nominees of Democratic presidents) take a narrower view of the Second Amendment and presumably would be more sympathetic to state or federal regulation. In my previous Constitution series (“Imperfect Union”) I argued that the appointment of Supreme Court justices has become subject to certain partisan/ideological litmus tests, most expecially on the Roe v. Wade abortion case. It seems reasonable to wonder whether future nominees view of the Second Amendment will be added to the list of litmus tests for future nominees.

Comments (30)

  1. Submitted by Jon Kingstad on 04/18/2013 - 09:02 am.

    Put that in the bank.

    “Reasonable to wonder whether future nominees view of the Second Amendment will be added to the list of litmus tests for future nominees”? I think you can put that in the bank. We can look forward to the worst Supreme Court ever becoming even worse.

  2. Submitted by Peder DeFor on 04/18/2013 - 09:41 am.

    Couple of Quick Points

    1) The Miller case is clearly a case of a Supreme Court working its way toward a ruling rather than a dispassionate reading of the Constitution. It deserves much more derision than you’re handing to Scalia.
    2) The scarcity of challenges to an Amendment tells us little about its quality. The 3rd Amendment has never been challenged and it still has full force.
    3) It’s not uncommon for Supreme Court rulings to leave things very unsettled. Look at the way 4th Amendment law has evolved over the last forty years. Or look at the various balancing tests in other areas.
    4) The idea that the 2nd Amendment was an individual right was uncontroversial until at least the Progressive era. As recently as 1960, Hubert Humphrey, supported the idea that individuals were covered by it.

    • Submitted by Paul Brandon on 04/18/2013 - 01:59 pm.

      Some context

      Here are the actual quotes from Kennedy and Humphrey (not that they were during an election campaign:

      ” Sen. John F. Kennedy’s statement, Know Your Lawmakers, Guns, April 1960, p. 4 (1960): “By calling attention to ‘a well regulated militia,’ the ‘security’ of the nation, and the right of each citizen ‘to keep and bear arms,’ our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important.”

      Sen. Hubert Humphrey’s statement, Know Your Lawmakers, Guns, Feb. 1960, p. 4 (1960): “Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.””

      Also note that they are talking about a citizen’s right to bear arms, NOT an individual’s right to own guns.
      What they said is consistent with the reading that the Second Amendment refers to participation in a well regulated militia (the national guard).

      Saying that a citizen “must be ready to participate in the defense of his country” is still not a statement about individual gun ownership.

      • Submitted by Peder DeFor on 04/18/2013 - 03:30 pm.


        I’m not sure what mental gymnastics you’d need to use to not understand Humphrey’s statement as supporting individual use. Are you seriously suggesting that “But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.”, was simply his way of saying that it was ok for the National Guard to have guns? I’m not sure how you can possibly read it that way.

        • Submitted by Paul Brandon on 04/18/2013 - 07:30 pm.


          Kennedy and Humphrey were paraphrasing the language of the Second Amendment; their statements have the same basic ambiguity as the Amendment itself.
          As with the Founders, he was quite literate. If he had meant ‘individual’ he would have said so. As it is, the most that can be said is that he endorses the right of citizens to bear arms when they are enrolled in the National Guard (‘a well regulated militia’).
          Also note that there is nothing there about -owning- firearms; just about using them in the appropriate contexts.
          Some people see what they want to see, not what’s actually there (it’s called ‘confirmation bias’).

    • Submitted by Jeff Kline on 04/19/2013 - 10:50 am.

      Absolutely true.

      They looked at this issue in the 1930s but the idea waned in favor of other things to try and collapse only the economy and subvert rather than through a sometimes referenced as “military” style means of subversion. Remove the peoples ability to defend themselves, and they become much easier to get into compliance, or elimination.

  3. Submitted by Neal Rovick on 04/18/2013 - 10:06 am.

    Scalia, the “originalist” reminds me of Humpty Dumpty:


    “I don’t know what you mean by ‘glory,’ ” Alice said.

    Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”

    “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

    Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”

    Through the Looking Glass0Lewis Carroll

    (end quote)

  4. Submitted by Paul Brandon on 04/18/2013 - 10:54 am.


    David Souter, Earl Warren, et. al.
    Justices don’t stay bought.

  5. Submitted by Michael Friedman on 04/18/2013 - 12:12 pm.


    Without comment on the pros vs. cons of gun ownership, this very informative series of articles suggests that those advocating gun control measures — in states where that represents the will of the people — should create legislation with a title like: The Connecticut Militia Act. The act can define the militia as all of the people of the state (with exceptions such as for age, mental health criteria, and past convictions, etc) and then set about to determine rules for what weapons the militia may be armed with, the right of militia member to choose not to be armed, any command structure needed to confirm access to and maintenance of the weapons (such as law enforcement screening), any military free zones for which the militia is not allowed to have possession of their weapons (no schools, not within cities over a certain size – perhaps with detailed exceptions and with off-site storage made available by the state for city militiamen and women affected) and whatever other preferences reflect the will of the people through the democratically elected government of the soverign state.

    In other words, the best means to challenge the Supreme Court status quo is to force it to defend its logic not against a city ordinance (which has no constitutional basis) but a fully developed encoding of a well regulated militia as determined in our modern era by one of the free States. (And State as in Connecticut or Illinois — I emphasize that because I keep seeing comments the past few days in which the “State” referenced in the amendment is wrongly used to mean the nation as a whole.)

  6. Submitted by Kenneth Kjer on 04/18/2013 - 12:32 pm.

    prefatory clause.

    It is not a prefatory clause, it is dependent clause. Commas are often used to separate clauses. In English, a comma is generally used to separate a dependent clause from the independent clause if the dependent clause comes first: such as: 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. The independent clause therefore stands alone as a sentence. The right of the people to keep and bear arms shall not be infringed. High school English teaches this to everyone, so where is the argument here?

    • Submitted by Neal Rovick on 04/18/2013 - 01:36 pm.

      Don’t you think that the sainted founding fathers would have made a sentence.that only said,
      “The right to keep and bear arms shall not be infringed”, if that is what they intended?

      I am amused by the supposedly dismissable “prefatory” ((or “dependent” )argument related to the militia.

      What would the purpose of mentioning the militia be?

      Remember that all of these amendments were proposed, debated, refined, amended and finally accepted by a group before they were included in the final document. It’s not like any part of any sentence was added as a last minute whimsy.

      On September 25, 1789, the First Congress of the United States proposed to the state legislatures 12 amendments (only 10 accepted) to the Constitution that met arguments most frequently advanced against the Constitution as written. The length process consisted of objections raised by the 13 state legislatures, objections considered by the Congress, proposed amendments worded and phrased to meet the objections, proposed amendments brought back to the 13 state legislatures to be considered, debated and reviewed, and finally accepted by the state legislatures and incorporated into a final document to be solemnly agreed to by the Congress and the legislatures. Arguably he most learned, interested and knowledgeable people of the time.

      And after all that process and scrutiny, there is half of a sentence that can be entirely ignored?

      What other “prefatory” portions of the Constitution shall we dismiss, also?

      • Submitted by Peder DeFor on 04/18/2013 - 03:41 pm.

        What else to dismiss?

        I take it that you bristle at the whole ‘Tenthist’ argument that wants to read the Tenth Amendment right out of the constitution then, right? And possibly you’re offended that the part of the First Amendment which says ‘Congress shall make no law’ gets quickly abandoned by campaign finance reformers.
        It would have been better to future generations if they had broken the amendment down into two sentences. It would have avoided confusion, certainly. But the intention is clear if you know the history of the time. They were concerned both with arms of individual citizens and the relationship between state militias and a central government.

        • Submitted by Neal Rovick on 04/18/2013 - 04:55 pm.

          Dismiss?I’m not the one


          I’m not the one proposing to ignore parts of the Constitution, am I?

          I’m not the one that thinks the writers were incapable of expressing the idea they wanted to, am I?

          I’m not the one dismissing the wording that was settled upon after significant deliberation by the First Congress and the 13 state legislatures, am I?

          In my opinion, I give them full credit for being entirely capable of writing a clear, concise sentence on the personal right to have a weapon, IF that was their intent.

          You make law with the Constitution that you have, not with the one you want.

        • Submitted by Paul Brandon on 04/18/2013 - 07:48 pm.

          Taken literally

          the ‘tenther’ argument could be used to dismiss the rest of the Federal and State Constitutions beyond their literal and original meaning, which become irrelevant as circumstances change with time. It limits the national government to only those powers stated in the Constitution.
          The amendment:
          “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
          It does nothing to resolve the original problem of the ambiguity of the term “the people”.
          So, since the Constitution does not delegate to the United States the power to raise an air force, nor does it prohibit the raising of an air force to the States, by your argument the only air force ought to be the Air National Guard, or private planes.

          So the tenth amendment collides with
          “Section 8. Powers of Congress
          The Congress shall have the power 1. to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States:….”
          ….specifically, promoting the general welfare. This allows Congress to exercise powers not specifically granted by the Constitution.

          So it’s left for the courts to sort out the conflict, which has resulted in all sorts of inelegant compromises.

      • Submitted by Kenneth Kjer on 04/18/2013 - 07:32 pm.

        Don’t you think that the sainted founding fathers would have made a sentence.that only said,
        “The right to keep and bear arms shall not be infringed”, if that is what they intended? That is exactly what they said, if you have any understanding of the English language, there is no argument here. A half a sentence isn’t being ignored. They made it quite clear, they felt; A well regulated militia being necessary to the security of a free state, that is not a sentence it a dependent clause waiting for an independent statement. That statement is “the right of the people to keep and bear arms shall not be infringed.” They could have said. The regulation of mosquitoes being necessary to the comfort of a free state, the right of the people to keep and bear fly swatters shall not be infringed. The only debate I see is what they meant by militia, which is moot, because regardless they made it clear that the right to keep and bear arms shall not be infringed.

  7. Submitted by myles spicer on 04/18/2013 - 01:09 pm.

    A wonderful series…

    well written and much needed now.

    Regarding the sacrosanct belief in SCOTUS decisions, as I noted in my piece (Time to repeal the Second Amendment) in Minnpost of 1/8:

    “… the fact is the Second Amendment is subject to vague interpretation. Indeed, 
since it was adopted in 1791, it has been the subject of more than 31 federal
 court cases of various kinds: six in U.S. District Courts; 19 in U.S. Courts
 of Appeals; and six that ended up in the Supreme Court. To describe the 
outcomes of these cases alone proves the confusion surrounding the Second
 Amendment — but suffice it to say, it presents a situation that will never
 be fully decided, and will probably remain a source of confrontation forever. Unless it is repealed.”

    Given that, we probably have not heard the end of this crucial argument.

  8. Submitted by Paul Udstrand on 04/18/2013 - 01:39 pm.

    Clause wits not withstanding…

    Kenneth, you keep playing this grammar game, a comma is not a period, a sentence by definition has a subject. Madison was an educated and capable writer, if he’d wanted to write two sentences about two different things he would have done so. What high school grammar teaches us is that this sentence tells us that the right to form state militias for the common defense shall not be infringed.

    • Submitted by Paul Brandon on 04/18/2013 - 02:03 pm.


      The Founders had more important things to worry about than junior high school grammar. And 18th century grammatical practices were more variable than they are now — there was no national core curriculum.
      Read some of the writings from the time.

  9. Submitted by Paul Udstrand on 04/18/2013 - 02:29 pm.

    Conclusion and more reading

    I think the history of the Second Amendment is one of the courts diverging from it’s original intent and rational interpretation. What we have now is NRA fantasy pretending to be “originalism” masquerading as settled law. We have a supreme court ruling that is the product of intellectual fraud. Time will tell how many lives will be lost until this fraud is revealed and reversed.

    Basically we see two fraudulent claims.

    One is that the Second Amendment somehow legalizes armed rebellion and builds rebellion into the checks and balances. The argument is that this amendment establishes the final backstop of protection for liberty and freedom by guaranteeing an armed populace capable of overthrowing tyrannical governments of the future. Frankly, even on the face of it this argument is absurd. At best such a guarantee would be useless because it doesn’t require an armed population in any way, it merely allows it. At worse, this guarantee sanctions terrorism since tyranny is in the eye of the beholder. The insurrectionist argument is simply justification for civil war. The idea that anyone who signed off on the constitution or it’s amendments wanted to promote rather than prevent civil war is beyond ignorance. At what point does a “free” man decide his government has become tyrannical? And under what circumstances would you have such a man protected by the Second Amendment? Since the Second Amendment says nothing about insurrection, or rebellion against tryannical governments of the future the mere posing of such questions is itself a form of fraud.

    The other fraudulent claim is that the Second Amendment is about self defense rather than collective defense. The idea that the Second Amendment is about protecting your home from burglars has no basis in history or the text of the amendment itself. One thing the courts have consistently upheld is the notion that private militias are not protected by the Second Amendment which means by default that the amendment refers to State Militias, and since an individual cannot be a militias, we’re talking plural not a singular subject. The amendment refers to common defense, not personal defense. And finally the amendment refers to military weaponry (Arms) not personal weapons i.e. guns.

    Now for whatever reason we have a supreme with just enough intellectual frauds on it that they can make bad rulings that we have to live with as law. THAT may be lesson we’re learning here- watch who you put on the court because we’re all stuck with their rulings.

    If anyone wants to do some further reading I also did a series that was published in Minnposts Blog Cabin a while back. I go into quite a bit more detail regarding the court rulings than Erick does here:

  10. Submitted by Christian King on 04/18/2013 - 05:13 pm.

    Free. Brave. Unarmed.

    If it were possible for gun-rights advocates to understand that they are, therefore, gun-death advocates, things might be different. It has been categorically proven that the U.S. has more accidental gun-related deaths and injuries than other “civilized” countries and of course far more intentional ones, costing us billions every year. It has been categorically proven that if you have a gun in your home, it is far more likely to be used against someone in your own household than against an intruder. It is painfully obvious to anyone logical that having a weapon in your home or on your person does not guarantee that you can defend yourself from an intruder or attacker. Armed police officers and soldiers are shot and killed all too frequently. And yes, armed criminals are, too. A gun is not a shield.

    And up until the Scalia court, the Supreme Court has interpreted the Second Amendment to relate only to states’ rights, not individuals’ rights, even to the point that they refused to hear some cases regarding gun laws, stating the Second Amendment didn’t apply to individuals, and therefore the court wouldn’t hear cases involving individuals’ gun rights. But Scalia saw fit to interpret the Amendment to suit his views, as he so often has. The gun-death advocates have the upper hand.

  11. Submitted by Ray Schoch on 04/18/2013 - 07:27 pm.

    Nice work, Eric…

    The conversation continues, albeit with a few frayed nerves.

    Kenneth Kjer’s grammatical critique is not entirely without merit, but manages to miss the point. His emphasis on the grammatical structure of the 2nd Amendment is reminiscent of critiques from gun advocates in the immediate aftermath of the Newtown murders, bashing political and journalistic figures over their figurative heads for not knowing the technical distinction between semi-automatic and automatic firearms. It’s a distinction that’s important to a relative few whose lives revolve around firearms, but wasn’t at all on the mind of the general public, which only knew that 20 small children and 6 teachers had been murdered by a jerk wielding a weapon that fired a round every time the trigger was pulled. Whether that constitutes semi or fully automatic fire is not even of academic concern to any of the parents and/or loved ones of those children and teachers.

    As someone who shoots with some frequency, I DO know the difference between the two, and in the context of Newtown, it’s of no importance to me, either. Those children and teachers were murdered in cold blood, and as has already been demonstrated in another mass attack since then, if the jerk responsible had been unable to acquire his AR-15 and stocks of ammunition, or his Glock and its associated ammunition, and had been forced to use a knife, or hatchet, or some other, similar, hand-held murder weapon, it certainly seems plausible, at least, that the death toll would have been far smaller. With any luck, the jerk would now be in jail, awaiting trial, after which he’d be trying to explain his attack on little kids to his unsympathetic fellow-inmates.

    The comments that I personally find most persuasive are the 1:36 PM one from Neal Rovick and the 2:29 PM one from Paul Udstrand. Paul’s first point, in particular, seems right on the mark regarding the notion of rebellion being written into the Constitution itself, in some mysterious fit of oxymoronic lunacy. The question of the legitimacy of armed rebellion against the federal government was tested with Shay’s Rebellion, and finally settled for good, as I’ve said in other posts, at Appomattox Courthouse. Neal’s treatment of the process by which the 2nd Amendment was crafted and adopted likewise seems to me especially relevant and noteworthy. There’s nothing else in the Constitution that a legal or constitutional scholar would call “whimsical.” It’s an obvious point, but especially relevant if we’re going to discuss the language of the Amendment, that it was not some sort of last-minute, ad hoc addition to an existing text.

    That the Amendment is badly-written seems to me inarguable, Kenneth Kjer’s grammatical notations notwithstanding, based on the sorts of arguments being presented in these very comments. A clearly-written and unambiguous Amendment would have allowed for no such variance in interpretation as we’ve seen here and elsewhere. It’s quite inconceivable to me that, given the gravity of the situation, and the knowledge of the writers of the Constitution and Bill of Rights that what they were putting on paper was unique, original, radical, and might possibly serve as a governmental framework adopted by others within and without the United States, that those wordsmiths would have purposely included half a sentence with a figurative asterisk saying, “Never mind this.” The logic of Neal Rovick’s first sentence in his 1:36 PM post seems to me impeccable.

    I have no faith in its certainty, but my hope, nonetheless, is that those Senators who voted against even the watered-down background check proposal will be genuinely haunted by it for the rest of their lives. They stood, not on principle, but on expediency, perhaps the least admirable of all political motivations.

    History will not judge us kindly.

    • Submitted by Neal Rovick on 04/19/2013 - 08:09 am.

      Ray, it is my personal opinion that the wording of the 2nd was arrived at in a clever purpose–that both the individual states AND the federal government might, at one time or another, need to raise a militia for defense at some time. The states rights people wanted the final bulwark against overweening federalism, the federalists were aware of the relative weakness of the country with respect to the super-powers and unknowns of the time.

      Also, can you imagine the doomsday scenario of the states rights–the raising a militia by the individual State (Massachusetts, for example) to oppose federal tyranny, and then through the subtly reciprocal nature of the amendment, the federal government exercising their own right to raise a militia in that very same state to defend the State (nation) against the individual state.

      Imagine that situation, and how it stalemates the individual states right to an independent militia.

      I think the “states rights” people got played by the “federalists” through the wording of the amendment.

  12. Submitted by Jeff Kline on 04/19/2013 - 10:45 am.

    The long and short of it.

    I’m amazed at how many communists actually live here in Minnesota. I’ve personally ran into a few and had dialog with them. They actually believe Communism will win out and take over America.

    The 2nd amendment is a “glue” to the rest of the constitution. It is the binder. For without it, we American people have no “teeth” against a ruthless tyrannical dictatorial government should that come to fruition.
    As many of you seriously WANT a full repeal of the 2nd amendment and confiscation of all firearms from the people; in America, this WILL NOT HAPPEN…. Unless you want to touch off the next American revolution.

    Fact is that the Dick Act of 1903 was put in place to stop those seeking to overturn this nation of a free people. I understand there are others that would legally need to be undone before you could even chip away at the 2nd specifically through legal dialog. The ONLY means available is by force. Lets see what they do next in Washington.

    So; I heavily invite you to go ahead. Even Obama thinks he can circumvent the 2nd via “executive privilege” and from the sounds of it, fully intends to do so.

    Lets get this party started.

    • Submitted by Paul Brandon on 04/19/2013 - 01:39 pm.

      More fantasy

      The only people who believe in Communism are latter day McCarthyites.
      Even the Russians and Chinese don’t believe in Communism any more.
      If you know any in Minnesota, they must be over 80 by now.
      Of course, you may be referring to anyone to the Left of Ghengis Khan, rather than people who actually identify themselves as Communists.

    • Submitted by Paul Brandon on 04/19/2013 - 01:52 pm.

      For myths abou the Dick act

      see Snopes:
      What the Act did was set up the National Guard as the Constitutional equivalent of the Militia.

    • Submitted by Neal Rovick on 04/19/2013 - 02:49 pm.

      ….Lets get this party started….

      Tell the truth, now, were you fondling your gun when you said that?

      At what point do comments like this pass over into incitement to perform illegal acts?

      I “heavily” encourage you to get a grip.

      Obama use executive privilege to eliminate the “2nd”?

      Can you say, “fevered imaginings”? Is this what gets you up in the morning?

  13. Submitted by Vince Vinacelli on 04/23/2013 - 05:35 pm.

    Jefferson would raise his glass to you

    I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” Thomas Jefferson

    Here is the sentence in context:
    “Societies exist under three forms sufficiently distinguishable. 1. Without government, as among our Indians. 2. Under governments wherein the will of every one has a just influence, as is the case in England in a slight degree, and in our states in a great one. 3. Under governments of force: as is the case in all other monarchies and in most of the other republics. To have an idea of the curse of existence under these last, they must be seen. It is a government of wolves over sheep. It is a problem, not clear in my mind, that the 1st. condition is not the best. But I believe it to be inconsistent with any great degree of population. The second state has a great deal of good in it. The mass of mankind under that enjoys a precious degree of liberty and happiness. It has it’s evils too: the principal of which is the turbulence to which it is subject. But weigh this against the oppressions of monarchy, and it becomes nothing. Malo periculosam, libertatem quam quietam servitutem. Even this evil is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the public affairs. I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” – Jefferson to James Madison, January 30, 1787[1]
    1.↑ In PTJ, 11:92-3. Letterpress copy available online from the Library of Congress.

    By the way… I do not own a gun. I have a 3 year old son in the house and I do not want to take that chance. It is a personal decision. My relatives and neighbors who own guns will let me borrow one, if I ever need one.

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