LITERALISTS

(NPF is cancelled on account of Thursday's high-profile Supreme Court decision)

Ladies and gentlemen, I present to you the 2nd Amendment to the United States Constitution:

"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."

I further submit the words of the Original Originalist, Mr. No-Interpretation-Permitted Scalia himself, in the majority opinion in the DC Handgun case (DC v. Heller):

"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."

Now, can anyone point to the part of the 2nd Amendment which deals with "self-defense"? Take your time. I'll wait.

It is neither new nor particularly noteworthy to engage in very selective readings of the 2nd Amendment. The pro-gun folks always conveniently forget the "well-regulated Militia" part whereas their opponents forget the second half of the Amendment when doing so is politically expedient. My personal belief is that the Amendment obviously enshrines some sort of right of firearm ownership to American citizens but the oft-forgotten "well-regulated Militia" part is a key qualifier. It means that state (or Federal, as the Amendment does not specify) laws may regulate firearm ownership short of banning it. Since the DC ordinance banned handgun ownership, I have no problem with the Court's decision. The language of the Amendment does not permit the right to be legislatively rescinded.

What I do have a problem with is the "Goddammit, we read the Constitution literally, like the Bible!" crowd and its patron saint talking about a constitutionally-enshrined right to keep handguns in the home for self-defense. From which asshole was this enshrined right yanked, and with how much force? Nowhere in the language of the Constitution or in Madison's notes on the Constitutional Convention is an expression of the need to keep guns in our bedroom to plug burglars (or, more accurately, to accidentally shoot our family members whom we think are burglars, which statistics show is about 50 times more likely than actually shooting a burglar).

The 2nd Amendment was not written because the Founders wanted to make sure that we could go Wyatt Earp on street thugs. Perhaps this is a legitimate reason in defense of private firearm ownership, but it's not a reason given in the Constitution. Steven Breyer's dissent speaks to this point in detail: "The Second Amendment's language, while speaking of a 'militia,' says nothing of 'self-defense.' " I thought Scalia was supposed to care about this sort of thing. He does, of course. On occassion.

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18 Responses to “LITERALISTS”

  1. J. Dryden Says:

    The ultimate "Toto Pulls Aside The Curtain To Reveal The Wizard" moment for Scalia's much-vaunted status as the Iron Man Strict Constructionalist came with "Bush v. Gore," where a decision without any Constitutional justification was pulled out of thin air to quickly get Bush into a position to nominate the kind of justices that Scalia et al. wanted on the Court. When the law is something you make out of whole-cloth in order to satisfy a long-term personal agenda, you're no longer allowed to be called a "strict" anything. Unless the word appears in the phrase, "Strictly speaking, Justice Scalia, you're a hypocritical asshole."

  2. BK Says:

    I'm glad to see we're skipping NPF for this today Ed… this is pretty important stuff and it reminds me of a post you did recently regarding the role of the judiciary in our government.

    This Court's recent decisions are fascinating to me. First the court strikes down capital punishment for kiddie rapists. Talk radio around Milwaukee was irate and couldn't believe how liberal this Court is. I mean, if we can't condone the killing of kiddie rapists, really, who can we condone the execution of (besides people of color)?

    Then, the Court follows-up with this 2nd Amendment decision and the Court is held up by folks on the right as this last point of protection for all that is wholly. With the caveat, of course, that it's unthinkable the GOP could have ever allowed that ACLU lawyer Ginsberg on the Big Bench.

    Many people seem to think this Court is getting some of this stuff correct because it's doiing a fairly good job of pissing off the extremes. Too bad this is entirely the wrong way to judge the Court's performance.

  3. Nan Says:

    What Scalia et al have actually done is opened the door to government nickel and diming away gun ownership, but the right wing gun nuts haven't figured that out yet. Yes, the court says, you can own a gun, but (and this is a huge but) the government has a right to set rules for that ownership. So that means background checks are okay, so are waiting periods, so are requiring registration and accompanying humongous registration fees, maybe providing proof you're keeping your weaponry where kids can't get at it, the possibilities are endless . . . I noticed there's been much dancing in the streets on the part of the NRA and its ilk. They're laboring under the misimpression that this decision opens the door to striking down all gun control laws everywhere. Not gonna happen — but it's going to take a while for that reality to sink in.

  4. Chris Says:

    Madison included a lot more about militias in his original draft of the 2nd Amendment before it was edited. The 2nd Amendment, along with other Amendments in the Bill of Rights, gives people protection from the government. It has nothing to do with an individual defending him/her self from another individual. I don't believe the 2nd Amendment actually addresses this, kind of like how the Constitution does not address modern issues like abortion or gay marriage.

    I completely agree that people who think the Founding Fathers intended to give people the right to own weapons through the 2nd Amendment have no idea what they are talking about. They would be correct to say Scalia, the man worth tens of millions of votes, gives them the right to own guns through his interpretation (I hope he gets hit by a bus or a semi).

  5. Nan Says:

    Actually, a more appropriate hope for Scalia might be that he encounter one of those newly well-armed citizens of the District that he has empowered. Poetic justice, and all.

    I really don't get the national obsession with guns. Are Americans the biggest cowards on planet or what? All those NRA types huddled in their gated bunker communities — it must be exhausting to live in constant fear like that.

  6. Nick Says:

    While you're technically correct that the Constitution does not include a right to self-defense, it was understood at the time that included in the right to bear arms was a right to defend oneself against criminal behavior as well as government tyranny:

    "Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self-defense."
    –John Adams

    "A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government."
    –George Washington

    In any case, I think it would be difficult to argue that Americans have the right to defend themselves from their government but not from criminals.

    Also, for the record, that "43 times more likely to kill a family member" statistic is deeply flawed. Arthur Kellerman, the author of the study, compared deaths in the home to cases in which the homeowner killed a criminal. He included suicides, which constitute more than half of gun deaths overall in the US and a vast majority of gun deaths in the home, in the number of owners/family members killed. He also did not account for criminals who are not killed by the homeowner; in over 90% of self-defense cases in which a firearm is used legally, no shots are fired–the presence of the gun is enough to scare off the attacker. In the remaining cases, there is no guarantee that the criminal will be killed or even wounded. So if you get rid of suicide statistics (there's plenty of ways to kill yourself around the home, you don't need a gun), and include defensive uses that involved an outcome other than a dead criminal, you end up with a very different picture.

    Nan: From the summary of the decision: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home…The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms…The 'militia' comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal government would disarm the people in order to disable this citizen's militia, enabling a politicized standing army or select militia to rule. The response was to deny Congress the power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizen's militia would be preserved." While it doesn't give us the right to own rocket launchers and machine guns, I think you would be hard-pressed to interpret that as anything but clarifying that individual citizens have the right to keep and bear arms. It's not the end of gun control battles by any means, but I fail to understand how you think it's a loss for us.

    As to us "cowardly," bunkered-up, paranoid, redneck NRA types–we're not any of that (well, most of us, anyway). I don't believe the government can be trusted to never infringe upon our rights. For the most part, peaceful and legal means suffice to prevent major abuses, but that doesn't mean that I want people taking orders from George W. Bush to be the only ones with guns.

  7. ladiesbane Says:

    Sentences with poor grammar and/or obsolete syntax are difficult to interpret; but "infringe" implies encroachment or weakening, rather anything short of banning.

    Is there any interesting history of federal case law involving gun ownership and home defense? Having grown up around militants, the party line was always that guns provide home defense AGAINST the military. Another rural legal myth?

  8. Ed Says:

    I think the original intent was clearly to provide some sort of check on government power, but in practice that idea is beyond ludicrous. If "the government" wants to fulfill some person's paranoid fantasy and "get" him or her, they will send 3 swat teams or drive an armored vehicle through the front of his or her house. One's collection of rifles and handguns isn't going to matter much if the government decides to act against that person.

    It has been pointed out on here before that the broad distribution of firearms throughout the population can provide a deterrent against an oppressive government, but color me skeptical. I see the logic behind that in theory, but any individual who thinks that owning a gun (or a cabinet full of guns) is going to provide protection when the Men in Black or ATF or CIA or Trilateral Commission or whatever decides to "get" you is indulging in quite a fantasy.

  9. Nick Says:

    Well, it's true that if the gummint decided to arrest/kidnap/black bag one or two people, all the guns they had wouldn't matter for shit. The theory, though, is that something would happen that was drastic enough to spark widespread uprising, and that the government doesn't have enough manpower to arrest millions of armed people all at once. There's 80 million gun owners in the US; even if only 5% of them actually fought against some hypothetical tyrannical encroachment, that's still 4 million angry people with guns. It'd be a hell of a problem for the government, in my opinion.

  10. beau Says:

    Sometimes I wonder if I can understand this issue at all, being non-American. Tiny pieces of metal flying through the air JUST SEEMS LIKE A BAD IDEA TO ME… but again, non-American, so… I dunno. One last thought-

    "The blade itself incites to deeds of violence." Homer.

  11. Adam Says:

    What strikes me every time this issue comes up is that the discussion usually hinges entirely on what the constitution does and does not say, or what John Adams, James Madison, et. al. intended by what they wrote back in 1789.

    First, I'd like it if we as Americans tried a little harder to think of this issue in normative terms rather than the usual dogmatic, literalist legalese that both pro-gun and ant-gun groups often engage in. Most people would agree that you should be able to own reasonable types of weapons for self-defense, hunting, target practice, or other legal purposes. Most people would also agree that there need to be limits placed on weapon ownership. For instance most would agree that owning very large caliber weapons should be severely restricted. The fringes on both sides of the issue want all or none rules about weapons. The average person wants something in between, and I think that that is the correct view on this issue. The substantive problem of gun control is to determine what constitutes "reasonable" use of weapons by the people at large. To figure out that conundrum, you have to have a good old-fashioned, soul-searching debate about the type of freedoms we want to have and the type of environment we want to live in. We have to come to a consensus on what risks we are and are not willing to accept in allowing everyone their constitutional right to arms. If that means we all decide the Constitution is out of step with the current reality, we change the Constitution. If not, we tweak existing laws. We have such a horrible fixation of the Constitution in this country, and it needs to be said that the Founders would most likely not approve of such an obsession. Remember all those civics lessons that explained that the Constitution was designed to be flexible since the Founders were clearly unequipped to predict future outcomes of American government? Hell, most of the Founding Fathers thought the Constitution might not last 50 years let alone a couple hundred! It's time we started taking charge of where we want to go as a people instead of trying to decipher hidden or unintended meanings from the Constitution and the law.

    Second, these arguments about what the founding fathers intended usually disintegrate into wholly partisan interpretations of a document (the Constitution, that is) that is itself hopelessly mired in contradiction. The Founders were not a homogeneous group of political and oratorical geniuses, but instead were a mix of radicals seeking a democratic revolution (such as Franklin), conservative men of means who wanted freedom mainly for the purposes of profit (such as Hamilton), moralists who sought religious freedom, and blow-hards (like John Adams) that thrived on accolades to their intellect. As soon as you start going back and investigating the real history behind the American Revolution and the writing of the Constitution, as well as the lives of the men and women involved, it becomes very clear that the Constitution is a half-way document written by people who largely agreed with one another over anything except the need to oust the British from American shores. Those conflicts are permanently fused into the structure of the Constitution and our system of government. Ben Franklin cried when he signed the Constitution, not out of joy but out of utter despair. He had envisioned a much different government than the one charted by Madison and Adams, but, recognizing the fragility of the Union, he signed anyway. That's the story you rarely (if ever) hear about the founding of the United States. That all wasn't well. That things were far from perfect.

    What I'm getting at here is that the reverence we're placing in the Constitution and the Founding Fathers is often hindering (sometimes completely obscuring) our ability to see issues such as gun control clearly, severely hampering any approach at pragmatic laws.

    Yes, the Bill of Rights is an amazing legal accomplishment, and no, I don't want to lose those freedoms. But we have to remember that the Constition and the law is for us as a people to mold to our collective will and not the other way around.

  12. Adam Says:

    Slight mistake above: I meant to say that the framers DISagreed on nearly everything except removing the British.

  13. Nick Says:

    To a point, I agree. The Constitution can and should be subject to change (although I think that amendment is a better way to go about it than reinterpretation). My main issue, as a gun-rights type, is that I despise useless law. Criminal background checks? Fine. Mental health checks? Excellent. Restrictions on explosives? I'm down. But beyond that, most gun control has no impact on crime whatsoever. Take a look at England's gun crime rate following the 1996 ban after the Dunblane massacre, or DC's homicide levels before and after the implementation of the now-overturned ban in 1976. Even less restrictive controls, such as registration (interesting point on registration: Google US v. Haynes, 1968), the "assault weapons" ban (which affected aesthetics, but not function, of weapons), restrictions on concealed carry, etc. have failed to produce any measurable effect on gun crime. Especially irksome are such "preemptive" measures as the California ban on .50 caliber weapons. Now, do we really need a .50 caliber rifle? Probably not, except for the hypothetical resistance movement scenario discussed above. But more importantly, not a single person–not one–has ever been murdered in the United States with a .50 caliber rifle of the type banned in California. This is not surprising, really; .50 caliber rifles start at about $2500 through legal channels, each round of ammunition is about $4 for the cheap stuff, the weight is generally 30-50 pounds loaded, and shortest of them is a couple feet long. They're mostly owned by middle- to upper-class gun nuts, because they're fun to shoot. They're not worth it, in terms of money, time, or convenience, to your average gangbanger. But white people in California thought they looked scary, and so they wanted them banned.

    If a restriction on gun ownership or available types of guns or on prices of guns or whatever can be shown to have a measurable effect on crime, than that's a legitimate point to bring up. But whether it's the PATRIOT Act or the "assault weapons" ban, I don't believe that legislation through fear is the way law ought to be decided.

  14. Nick Says:

    beau: When I was discussing it with my flatmates while studying in England, most of them held the same view you do, though they generally told me they hadn't thought much about it beyond the occasional snarky comment following a mention of the National Rifle Association. It's basically the same view I had until I started the issue closer (oddly enough, I was researching a paper that I initially intended to write on why handguns should be banned). I think Americans tend to be more libertarian (small L) as a generalization; hence why even those who favor gun control don't usually favor outright bans on firearms. And from another classical thinker:

    "There exists a law, not written down anywhere, but in our hearts; a law which comes to us not by training or custom or reading; a law which has come to us not from theory but from practice; not by instruction but by natural intuition: I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right."
    –Marcus Tullius Cicero

  15. Adam Says:

    Nick:

    I agree that useless laws should not be perpetuated. There are many, many such laws on the books however, and it would actually be very difficult to cull them all. I sometimes wonder if it would be helpful if lawmakers were required to check for legality (BEFORE the law is enacted, as I believe German lawmakers are required to do), and also perhaps a check for efficacy at some predefined point(s) after enactment. Although, I'm afraid such a process would degenerate rapidly into partisan attacks on every law, even good ones.

    The problem with useless laws is that they generally harm no one (at least not in a readily detected fashion), and hence garner little public outcry. Such laws go unnoticed for perhaps a hundred years with no comment, and more importantly, no enforcement. For instance laws in some states banning oral sex never were and probably never will be taken seriously, much less applied. Such laws should be removed, but you first have to recognize their existence, and that's no small feat considering the volume of law already written. In addition, if such laws have little or no impact, and also little public attention and outcry, the chances that any individual or group will devote time and money to the cause of repealing such "dead" laws is nil.

    Also, while I'll agree that Americans tend toward individualism in theory, I don't think that that accounts for their resistance to banning firearms. I'm more inclined to believe it has a lot to do with the fact that the US is the largest weapons manufacturer in the world, and weapons manufacture, sales, and export comprise the largest and most profitable industry in the US. Let us not underestimate the power of the weapons industry in shaping and guiding law. When you have so many people's livelihoods depend on such an industry is it any wonder that US law should be set against banning weapons? Is it any wonder we go to war on the average of every 20 years?

    Finally, the comment by Cicero is rife with problems. What if I defend myself by using my wife as a human shield? There are any number of scenarios that would be morally reprehensible and could still be regarded as self-defense. Moderation is still the order of the day, as it should be, even for Cicero.

  16. Nick Says:

    It would be interesting to see if such an efficacy test could be implemented. While you're probably right that there would be too much bickering to get it done, it might be worth a shot. And while the firearms industry may have some influence over lawmakers, I think you're overestimating their presence in the minds of the average American. If you work in the industry, or are at least deeply familiar with it, then yes, you'd notice the potential economic impacts of gun restrictions. But if you're not a gun person, I suspect it's one of those industries that doesn't get much thought. In any case, if you truly believe that banning firearms would have a significant impact on homicide, I would think that most people would choose the lesser evil of a few people losing their jobs. Not to mention that there are many successful firearms companies–such as Belgium's FN-Herstal, Italy's Beretta, and Germany's Heckler und Koch–that have large numbers of employees and exports, but are within countries that have much more restrictive firearms laws. In many cases, their primary market is military and law enforcement, with civilian sales being a secondary concern. So I don't think you can attribute the resistance of the average, middle-of-the-road American to a complete ban on guns solely to the gun industry.

    As to the Cicero quote, that's certainly an interesting interpretation. I would assume that Cicero would consider the use of a human shield an act which would remove your moral high ground from your attacker (and give the potential shield the moral right to use any and all means of self-defense against you) but it does raise some questions I suppose.

  17. beau Says:

    nick, what i was trying to say was that my non-american eyeballs can see the word "militia" in ed's post. many US citizens (your good self included) don't seem to understand this term.

    in the case of anarchy breaking out in the US, those millions of armed americans (by the way, what could possibly cause a popular uprising in america? nothing.) would be SHOOTING EACHOTHER while big brother sits in his green zone and sells you all more guns.

    "from my cold dead hands" is a fairy tale, a lullaby sung to you all by those who make big piles of money selling guns and the status quo.

  18. beau Says:

    by the way, the "you'll agree with me once you give it a little thought" didn't work for my high school economics teacher, it ain't gonna work for you.