Constitutional Fallacies Part II: The Myth of an Unlimited Right

Posted On September 3, 2013
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September 03, 2013

Myth

Historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right. – U.S. District Judge Sam Cummings

Gun Control is not about guns; it’s about control. – Popular slogan

No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.     – Thomas Jefferson, Proposed Virginia Constitution, 1776, Jefferson Papers 344

When they come for your guns, give them the ammo first. – Boston T. Party

    Overview of Pro-gun Arguments:         

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  • The Second Amendment clearly supports an individual right to bear arms.
  • The Second Amendment is a total prohibition on gun regulations. No gun regulation can be passed that will infringe on the right of the people to bear arms.
  • A milder version of this theory is that the Second Amendment prevents the ban of any firearm.
  • Any gun regulation is a slippery slope to complete disarmament.

Reality

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 preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. – Joseph Story, former Supreme Court Justice

The Second Amendment is not an absolute guarantee to own any firearm, and until recently was not considered an individual right.

For most of America’s history, the Second Amendment was interpreted as only applying to militia service, unlike in many state constitutions where the individual right to bear arms is clearly spelled out. Even though there is some scattered evidence supporting the view that the Second Amendment is an individual right, for most of the 20th century (when gun-control entered the national discussion), the consensus view was that it protected a collective right, nothing more. As the Supreme Court ruled in United States v. Miller, a case challenging the first major federal gun control law, the right of the people to keep and bear arms is an individual right only in that it requires individuals to man a militia. It was not until very recently that the right was detached from such service and declared a purely individual right.

The debates during Virginia’s ratification of the Constitution are especially illuminating. The Federalists argue that the power of the Federal Government over Militias was necessary for the defense of the nation, and was not exclusive to the Federal Government (i.e. states still have some say in the matter). Anti-Federalists rejoined that this was too much centralized authority and the Federal Government could abuse this power to the detriment of the states. For example, as Carl Bogus explains in “The Hidden History of the Second Amendment,” during a slave rebellion, the Congress could conceivably call the Militia to deal with a “threat” somewhere in the North, thereby leaving Southern States helpless. Conspicuously lacking from this debate was any discussion about an individual right to bear arms. The entire debate centered around which government was really in charge of the Militia, State or Federal, not whether citizens could carry arms outside militia service.

Moving ahead a couple centuries, during the 1934 debate over Federal gun laws, Karl T. Frederick, president of the NRA and “the best shot in America,” stated he did “not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” When questioned on whether the proposed gun laws ran afoul of the constitution, Frederick responded “I have not given it any study from that point of view.” Today, it would be unthinkable for the head of the NRA not to use a constitutional argument in defense of gun ownership. Frederick would further elaborate in other writings that the right of law-abiding citizens to carry guns “lies in an enlightened public sentiment and in intelligent legislative action. It is not to be found in the Constitution.”

The gun lobby’s modern interpretation of the second amendment as all rights and no regulation began, ironically, with the Black Panthers during the 1960s. The Black Panthers, inspired by Malcom X, began openly carrying loaded weapons as a means of self-defense (and intimidation). This movement climaxed when a group of Panthers entered the California State Capitol, armed with an assortment of loaded weapons. Ronald Reagan, then governor of California, responded to the Panther’s adoption of gun rights as a “ridiculous way to solve problems that have to be solved among people of good will” and that he saw “no reason why on the street today a citizen should be carrying loaded weapons.”

While popular movements advocating the individual rights position began forming during the late `60s, the first academic article promoting the individual right to bear arms was written in 1960. By the end of the decade, a grand total of three papers supported the individual rights interpretation, versus twenty-two supporting the collectivist right view. While the individual rights argument had a relatively late start, it quickly blossomed. The NRA embraced the new interpretation after its leadership coup in 1977, which installed the ideology it proselytizes today. This coup highlighted the dramatic ideological shift of the proponents of the individual rights interpretation; from far left militants to far right militants. Despite the individual right interpretation’s massive surge in popularity, most historians find the argument unconvincing at best, as Richard Posner notes in a critique of Scalia. Former Chief Justice Warren Burger, a conservative, went even further and stated that the NRA’s interpretation was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

However, let us make the most pro-gun assumption possible and assert that the Second Amendment unquestionably protects an individual right to bear arms. It changes nothing in the discussion of gun control. Even as an individual right, the government still has the Constitutional authority to regulate firearms, as expressed in the Second Amendment. The two most recent Supreme Court rulings on the Second Amendment, District of Colombia v. Heller and McDonald v. Chicago, stated that an absolute ban on all firearms was unconstitutional, the right to own a weapon did not depend on militia service, and that the ruling was enforceable against the States. But both protected gun regulation. From the majority opinion of DC v. Heller:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

The dissenting opinion provides even less support for the unlimited right interpretation:

Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes.

Even with the court’s massive break from precedence, the majority opinion still holds that the Second Amendment right to keep and bear arms is not unlimited. Not one of the justices sees the Second Amendment as guaranteeing a right to own any firearm, and certainly not without restrictions. Indeed, as Adam Winkler, a constitutional law professor at UCLA, notes, in the nearly 200 rulings on the constitutionality of gun control by lower courts since DC v. Heller, almost all of them supported the current gun laws.

The fact that the Second Amendment is not an unlimited right is intuitive, even for many gun advocates. Nobody (who is sane) seriously argues that the ban on fully automatic weapons or heavy weaponry such as RPGs is infringing on the right of the people to keep and bear arms, despite easily falling under a loose definition of “arms.” However, why is this the case? Following the logic of “the right of the people to keep and bear Arms, shall not be infringed” (while completely ignoring the first half of the amendment), this should apply to machine guns and RPGs. Why doesn’t it? When confronted with this question, gun advocates typically respond in one of three ways:

  1. It is unfair to compare the guns that are currently legal to the weapons mentioned above.
  2. Those weapons aren’t needed (unlike assault rifles) and some crazy dude may use one to attack a school or something.
  3. It does.

Let’s start with the “unfair comparison” argument. While is certainly would be unfair to compare most handguns and small-game hunting rifles to these weapons, assault weapons are in the same league as machine guns. In most situations automatic fire is less effective than semi-automatic, and large machine guns are impractical to carry by hand. As we explained in The Hammer Theory of Guns, the only difference between military assault rifles and the civilian versions is the ability to go automatic, which does little to change the killing capacity of the weapons. A .50 caliber rifle (which is legal) is designed to blast through walls and stop vehicles. A gun advocate may point out that very few people are killed with assault rifles and .50 caliber rifles, which is true. However, very few people in the US are killed with machine guns or RPGs as well. Would that be a legitimate argument for legalizing them? Hardly.

The second response parallels the arguments of those favoring further gun control and assault weapons bans. Assault weapons simply aren’t necessary for self-defense or recreation, and some crazy dudes do use them to catastrophic effect.

The third response is merely a subset of Insurrectionism. If one supports the inane notion that the Second Amendment was written with insurrection in mind (which we thoroughly debunked in Part 1), one would then also have to admit that the bans on heavy weaponry are unconstitutional. If the purpose of the Second Amendment is to prevent tyranny by threat of violent revolution, then it would make no sense for the Amendment to permit a ban of heavy weaponry (which would be necessary to violently overthrow a well-armed tyrannical government). Insurrectionists often argue that even small controls only further tip the balance of power toward the government, and make further gun control more likely. Gun regulation and the Insurrectionist interpretation of the Second Amendment are completely incompatible. As the majority opinion in DC v. Heller expresses though, “prohibiting the carrying of dangerous and unusual weapons” is permitted. The Insurrectionist theory of the Second Amendment then is still completely at odds with the most pro-gun Supreme Court decision in history. There is no intellectual basis at all to support the idea that the Second Amendment provides for an unlimited right, and thus completely undermines the Insurrectionist interpretation.

Takeaways:

  • The interpretation of the Second Amendment as an individual right is a relatively recent phenomenon.
  • The Second Amendment does not provide an unlimited right, meaning that gun control is completely constitutional.
  • The Insurrectionist interpretation of the Second Amendment is still completely at odds with the history surrounding the Amendment, the text of the Constitution, and every Supreme Court decision on the issue.

Part 3 will debunk the myth that Militias (even in the Constitutional sense) are effective at preventing tyranny. Part 4 will tackle the broader philosophical debate of the freedom to bear arms.

6 Comments

  1. Devin Hughes   September 3, 2013 2:33 pm / Reply

    We welcome all coherent, respectful comments. Since it is impossible to provide thoughtful commentary on something you haven’t bothered reading in full, comments where this is readily apparent will not be posted. We review all comments before they appear, so there will be a delay even if it meets the preceding criteria. Although we do not typically respond to comments and have no time to engage in prolonged debates, we will attempt to answer questions about our data or research.

  2. Pingback: The National Security Paradox: How America’s obsession with guns harms worldwide security | Armed With Reason

  3. legaleagle_45   December 17, 2013 9:43 pm / Reply

    The blog concludes: “The interpretation of the Second Amendment as an individual right is a relatively recent phenomenon.”

    The individual rights thesis had been the exclusive view of the 2nd Amend until a rogue decision entitled Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905).

    The blog further concludes: “The Second Amendment does not provide an unlimited right, meaning that gun control is completely constitutional”

    This is a strawman argument. Very few people assert that the 2nd is unlimited and even those who profess to assert this will allow for the disarmament of convicts in prison. However, just because the 2nd, like all other rights is not unlimited,, does not mean that any and all gun control legislation is constitutional. That this is true is quite clear as gun control legislation was in fact found unconstitutional by the Supreme Court in DC vs Heller and McDonald vs Chicago. Gun control laws must be subjected to constitutional analysis to determine whether they are permissible under the 2nd, just like laws which inhibit 1st Amend rights are subjected to constitutional analysis to determine whether they are permissible under the 1st.

    The blog finally concludes:”The Insurrectionist interpretation of the Second Amendment is still completely at odds with the history surrounding the Amendment, the text of the Constitution, and every Supreme Court decision on the issue.”

    If you include “as a guard against usurpations” in your definition of insurrection, you would be wrong. One need only point to Madison’s Federalist #46 as proof that federal usurpations of power were a concern which would be dealt with by the fact that the people are armed and can form themselves into an organized resistance in the event such usurpations were ever to occur. The 2nd does not(IMHO) provide for an insurrection as against lawful governmental authority. Such action would be an extra constitutional right. See Lincoln’s 1st Inaugural Address. It does act as a means of resisting such things as a military coup.

  4. William Ashbless   March 2, 2014 4:35 pm / Reply

    The Black Panthers were a grass roots campaign to protect citizens of Oakland California against racist policies and treatment by a corrupt city government and police department. Black Panthers would follow cop cars around and then stand watch over the corrupt police to insure black citizens wouldn’t be murdered or oppressed by this corrupt political machine. Preventing black citizens from protecting themselves and exercising their rights to do so is a racist indictment of gun control efforts in California.

    That wasn’t just a quaint story from the 60′s. Corruption and racist treatment of the black community are still widespread in Oakland TODAY. It is so bad that control over the Oakland Police is no handled by a Federal Magistrate because the locals are so corrupt.
    The corrupt city drove out the final gun store from that town in 2000. City leaders got their wish. Crime hasn’t gone down. It’s worse.

  5. Zap   May 7, 2014 7:12 am / Reply

    I’m sorry but i have to say as an European, reading the US constitution the 2nd amendment simply means they wanted “armed forces”.
    “well regulated militia” = army.

    Not every clown with a gun.

    But yeah i am just an European so what do i know xD

    • legaleagle_45   May 8, 2014 1:47 pm / Reply

      Your interpretation would be redundant as Article I< Sec 8, Cl 12 already provided the federal government with the power to raise an army.

      Most Constitutional scholars believe that the whole of the Bill of Rights acts as a restriction on governmental power, not a grant of government power.

      I suggest you research the meaning of militia to the framers as it certainly was not considered the equivalent to "army".

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