Again from Reason’s July print edition, Jacob Sullum, “Hello to Arms”:
Through a combination of possession restrictions and storage requirements, the District of Columbia effectively prohibits the vast majority of Washingtonians from keeping guns in their homes in self defense. In a sense, then, it was not really surprising when the U.S. Court of Appeals for the District of Columbia Circuit concluded last March that D.C.’s gun law violates the individual right to keep and bear arms. The surprising part was the court’s acknowledgment that the Constitution protects such a right.
Because that conclusion is at odds with the rulings of other circuits, the case may lead to a Supreme Court decision that gives new power to a constitutional guarantee long ignored by the federal courts. In May the D.C. Circuit rejected the city’s request for a rehearing of the case, which was decided by a three-judge panel.
This is the first time a U.S. circuit court has found a gun control law to be inconsistent with the Second Amendment. Only one other federal appeals court, the 5th Circuit, has even conceded that the Second Amendment has any bearing on laws that restrict individuals’ possession and use of guns. The rest of the circuits that have addressed the issue have endorsed the “collective right” interpretation of the Second Amendment, according to which “the right of the people to keep and bear arms” means “the power of states to raise militias.”
In response to a lawsuit organized and financed by Cato Institute legal scholar Robert Levy, the D.C. Circuit panel rejected the collective-right theory as historically implausible and inconsistent with the rest of the Constitution. The opinion cited evidence that the Framers and the leading legal scholars of the 19th century saw the amendment as guaranteeing a pre-existing right to use arms for defense against criminals, invaders, and tyrants. “The people’s right to arms was auxiliary to the natural right of self-preservation,” the court said. “That right existed prior to formation of the new government under the Constitution.”
The court noted that the Bill of Rights is aimed at protecting individuals from an overbearing government and that the phrase “the people” in the First, Fourth, Ninth, and 10th amendments clearly refers to individuals. Given this context, it said, “the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.”
[emphases mine]
It is certainly heartening to see a Circuit court taking the time to study texts so closely for clues to the Framer’s intent—here, they relied heavily on intra- and intertextual markers that spoke to a consistency that the court concluded had been irrationally bracketed by the “collective-rights” interpretation of prior courts (itself a baffling reconstruction of the text of the amendment that proponents of gun control have long relied upon to get around sticky Second Amendment checks on their statist agenda). Or, to put it more simply, they performed a more rigorous close reading than prior courts and concluded that an interpretation that imagined a collectivist right was the product of a rather poor understanding of both the text and its historical and cultural context.
Of course, both interpretations relied on an appeal to authorial intent— even proponents of a “Living Constitution” would not be so bold as to claim that what the Framers meant is irrelevant, lest they render the Constitution meaningless— but not all intentionalist arguments are equal. So while previous federal courts have accepted the “collective right” argument as consistent with what the Framer’s intended, in doing so they were compelled to either ignore or explain away textual, intratextual, and socio-historical clues that tended to undercut that interpretation.
Here, the D.C. Circuit court performs a commonsense legal interpretation of the Second Amendment—the first step toward rehabilitating the kind of legal interpretation that (Scalia’s misunderstanding about what he’s doing aside) the judiciary is entrusted to perform. But the next step—and one that the Court doesn’t appear to address here—is to attribute the intent necessary to solidify their interpretation to the correct party: namely, those who were charged with ratification.
Because with a consensus document like the Constitution, the intent we need to appeal to is not necessarily that of the Framers, but rather the intent of those who gave legal power to the words of the Framers—who supplied the final signifieds to the Framer’s signifiers.
Generally speaking, the signs—the signifier / signified / referent—issued by the Framers would be understood by those charged with ratifying the documents, so it is likely that the intent of the Framers has been faithfully enshrined into law by the ratifying parties. But, from the standpoint of an intentionalist appeal, it is at the stage of ratification when the signs are fixed, and their intent historically established.
Those who argue a collective-right, therefore, need to show that, during the stage of ratification, the ratifiers either misunderstood or “rewrote” the Framers’ text, and voted into law a Second Amendment substantively different from that proposed by the Framers. Alternately, they could argue that, in other amendments where individual rights have been long supposed, the Framers and those who ratified the documents were speaking collectively. Neither of which interpretations seem plausible.
For those who agree with the interpretation of the Second Amendment argued by the D.C. Circuit court, on the other hand, all that is required now is to argue—by way of corroboration or some overwhelming set of inferences—that those who ratified the documents both understood and agreed with the Framers, as evidenced by the ratification process itself. Because surely such an important change in philosophy—from privileging the individual to imagining a collective right—would have necessitated a demand that the language be changed to avoid subsequent interpretive confusion.
This may seem trivial to some, but by placing the appeal to intent precisely where it belongs, the case for a commonsense reading of the Second Amendment becomes infinitely stronger. Because by illustrating that those who ratified the documents agreed to adopt the intent of the framers (since established, in the Circuit court’s estimation, by both internal and intertextual semantic consistency, as well as cultural and historical evidence acting as corroboration), supporters of the “individual right” interpretation of the Second Amendment would deny “collective right” proponents any wiggle room on the question of intent, forcing them to rely on the kind of inferences made by Michael Bellesiles in his influential, and since discredited, Arming America, The Origins of a National Gun Culture, as a way to worry the Circuit court’s reading, and to finesse a separate and distinctly different “intent” argument out of the historical record.
I will be happy when the 2nd Amendment is treated with as much reverence as the others.
I question your free speech, JD.
…but…but…John Lott! John Lott!
I will be happy if people ever begin to understand that the Constitution was intended as a means for the people to regulate the government, not vice versa.
Don’t say that, JD. With the beating the First is taking with speech codes, with the Kelo decision, with the complete gutting of the Tenth…treating #2 equally means the total loss of our rights of self-defense.
Unfortunately our constitution is enforced about as often as libel and slander laws.
I mis-spoke. I realize that the congresscritters and the courts tend to have little regard for the Constitution. I guess I was referring to the populace. The 1st Amendment has a sacrosanct air about it, despite being trampled by the above referenced actors. Joe Q Citizen tends to get pissed if you mess with his 1st Amendment rights, but destroying the 2nd Amendment bothers nobody outside the NRA.
Frankly, I’ve never gotten this whole argument that the second amendment is about militias. Not only is it not original intent, it is invalid logically. It’s invalid as a point of English construction. If the 2nd read:
An educated electorate being necessary to a free society, the right of the people to keep and bear books shall not be abridged
Nobody would argue that only voters, or libraries, could own books.
I don’t personally like guns and I think a modern society needs guns in the citizens about as much as we still need fainting couches and corsets. Further, I don’t see how guns “protect” our liberty from government (ask David Koresh how much they protected him). But, those are personal views and, as much as it pains me to say (and it has taken twenty years of living and two years of school) the Second Amendment is poorly written, but refers to the individual. The Court is right.
Personally, I imagine there will come a time when the American people change the Constitution in faovr of restricting the Second Amendment, but it won’t happen in my life time. If the Supremes accept that case, I imagine it will be difficult to pass further gun control legislation.
I agree with Jeff’s analysis of the reading and decision. He is dead on.
PS I know you guys like guns and don’t like people who do not. All I’m saying is that the Second Amendment is what it says it says and Jeff is right. That would seem to be non-controversial, but I forgot to ask B Moe
I think that’s carrying “concealed carry” a bit far, timmy.
Most of us here probably hate guns; we’re just sticklers for upholding the original intent of the US Constitution. Call it a personal failing, if you will. For a moment, tim, you were on the verge of expresssing an intelligent idea.
Missed it by that much.
Slartibartfast, nice catch. Typing is apparently not my strong suit.
As for ahem, I really think a poll of PW readers would indicate quite a few own and like guns. The very reasonable “Jim in KC” is an example of a PW poster who owns several guns.
Then again, I’ve never conducted that poll, so perhaps I remember the discussion of the Edwards’s neighbor a little more colorfully than it happened. Point taken, though, that was an assumption that has not been shown to be true. We’ll see if other people want to weigh in with their preferences.
Things like the above are, perhaps, why people might deem you a bit confrontational, timmy. Leave that out (and maybe the sweeping generalization “I know you guys like guns” too) and you might be starting off on a better foot.
Of course, who cares what I think – I’m just kibbitzing.
P.S. I find a firearm to be a useful tool on occassion. Do I “like” them – no more than a plumber might “like” a pipe wrench.
Timmy,
Go to death row and ask the convicted killers the importance of a citizens right to bear arms. Ask if they would rather pray on an unarmed person or one packing heat.
We are already limiting the first ammendment…..hell why not the second too!
To me, saying that one “hates guns” is about as logical as saying that one hates ball peen hammers.
But I digress. I believe that we can track the rise of the “collective right” interpretation of the 2nd Amendment on the same graph as the rise of nannystatism. The individual right to self defense, and hence the right to possess the means of self defense, is deemed by many on the left to be archaic. Witness (once)Great Britain. Unfortunately, the State—any State—has shown itself to be a very poor defender of the individual’s person and property in the face of an immediate threat.
If you are not allowed to defend yourself against predators, you have lost the right to self-determination. The state both cannot and is not legally bound to keep you safe. Guns are a very good way to equalize the balance. Otherwise the strong would prey on the weak.
I don’t see restriction on the private ownership of arms to be anything other than a bad thing. I’d rather be a citizen than a subject.
Fools. All of you. The 2nd amendment was created so that the government would have, in writing, the ability to have a military.
Because governments always need permission to build an army.
</end sarcasm>
Timmah – you can check out my blog. I’m one of those ‘gun nuts’ you deride. And if it weren’t for me owning and using a firearm, I’d be dead right now. So, I don’t know what place in society you think guns don’t have a part of, but I’m betting it’s not some place lit by the sun. Because otherwise, I can defend myself quite nicely with a Glock 29 (or, if need be a sharp stick. But I’d prefer the Glock).
In all seriousness, timmy, do you not see how the bolded part is out of line? How is it “intellectually honest” to immediately and consistently assume anyone who disagrees with you doesn’t like you? Do you really not understand that your constant passive/aggressive hostility taints every point you try to make and is the reason some of us treat you with disdain? You constantly imply nefarious motives and bad faith intentions to your opponents, then act shocked when they refuse to honestly engage you.
I love my .375 long gun. Completely impractical, but I love it nonetheless.
Timmah!: I have the right to protect my ass, and I get to decide the best way to do that.
Your ass is your own problem.
Also, to be clear, I don’t feel any emotion toward guns at all. I like having the choice to own a gun if I desire. I disagree with people who want to deny me that choice. So what you know is wrong.
For what it is worth, I don’t own a firearm at present – I gave my pistol to a responsible collector (has a safe and everything!) when I left for Afghanistan. Came back and haven’t purchased anything yet. I may at some time in the future. I’d like to have the ability to do so at that time.
Major John, if you’d like to make Sarah Brady wet herself, I suggest one of these.
I paid $80 for her, and for another $90 I got 900 rounds of surplus ammo.
I will probably stick to a 9mm like the current sidearm I carry. I don’t think I can have, nor do I feel the need for, an M-4 carbine.
Timmy bleated:
Oh look. Timmy’s wrong. Again. Shocking.
B Moe wrote to timmy:
No, the intellectual dishonesty is Timmy presuming that because people don’t like him, it must be for his views, and not his winning personality.
Then he further tries to confuse things by claiming that people who don’t like him automatically don’t like people who agree with him on one topic or another.
That M4 is a pretty badass gun.
*cough*M44*cough*
Further, I don’t see how guns “protect†our liberty from government (ask David Koresh how much they protected him).
Strangely enough, they were going to arrest Koresh for violations of gun laws. Were there no laws restricting the bearing of arms, there would have been no cause to go after Koresh in the first place. Irony there.
But of course one individual with a stockpile of guns can’t protect himself from the whole government. The second amendment is to allow the people, en masse, to rise up against an unjust government and drive it out.
Which is why people agitate for the right to stock up on automatic weapons: they’re not preparing to shoot turkeys, they’re prepared for The Revolution, should it come.
TW: At this moment52 I have no guns, nor do I understand the fascination with them. But there you are.
The fact that you know the name Koresh (or Waco for that matter) is a testament to the 2nd Amendment. If Koresh or the Branch Davidians had not been armed and fought back, the government would have taken them away and nobody would have ever known.
Turns out, politicians are much less likely to use force against American citizens if they think the news will get out. Shoot back, and that’s a certainty.
Robb Allen
Just kidding, but what’s with the towel over the shoulder in the video clip. Granted the Nagant has a steel butt plate but it really doesn’t kick that hard.
Just to soften the blow a little, that’s all. The first time I shot the M44, I had a series of bruises that looked vaguely like Fran Dresher’s left areola.
It’s not the kick so much as the abrasion. My new stock’s rubber butt plate is much better in that regard.
I like guns. I like my All-Clad pans and my Wusthof knives, too. Horses for courses. I mean, yeah, I could brain an intruder with a 12” skillet or get in close and cut him to ribbons with a 10” chef’s knife, but a .45 or a 12 gauge has a bit more range.
I don’t dislike people who say they hate guns, I just think it’s a silly opinion and one normally based on inadequate knowledge and an unjustified overabundance of faith in their fellow man.
I used an M-4 on occasion (always better to have two or more weapons when outside the wire) but not an M44. Looks like it has some punch, tho’.
I do remember seeing plenty of M-14s and a few .50 cal rifles with some of the more grim looking snipers.
BTW – I think my comment crossed yours during publishing…
Wonder how many Germans got dropped by those M44s? Brrr….
Well. For starters you could find something written by any of the founders specifically denying a personal right to own firearms. Then there is the militia act of 1791 which was inacted after the ratification of the constitution.Which pretty much puts it as in individual right. For huntin’ turkeys ya know.
And timmy sounds off, yet again on an issue he knows little to nothing about.
You can have all the guns your heart could desire and if you choose a crappy site to defend with nothing but clear fields of fire going for it, you’ll fare no better than did Vernon Howell.
And the whole point of the investigation and raid was the posession of illegal weapons. Is your irony meter pegging out yet?
As for liking and disliking people, you’ll have to speak for yourself. I can easily dislike that someone would wish to limit any of my rights without disliking that person at all.
Besides how can anyone not like something like this. I loves me a good bullpup design.
Robb: If the Davidians had not fought back, two men would have been taken to stand trial, weapons and explosives would have been confiscated and 80-odd people would still be worshiping in their still standing church.
I own a 9mm Beretta, and will sone take posession of a semi-auto M4 rifle. I do additional target practice on my own time and dime. I do hope to obtain an M1 Garand one day.
If the BATF had sent a guy to walk up to the door with papers asking for Koresh to turn himself in for arrest (as the Waco sherriff did to Koresh on another occasion) they also would have been just fine. But instead they alerted the media ahead of time and sent fifty guys in ninja gearwith guns to run up to the house on film.
But in answer to Timmy from way back, what good did it do Koresh? It took the government 51 days, hundreds of people, and millions of dollars to bring that caper to a close. The government can’t do that to everyone. Can’t even do it to 1% of the people… it’ll run out of money first.
I don’t like guns any more than I like a good handplane, such as a Lie-Nielsen. I don’t like them any less, either.
Guns are tools to be used for a purpose. In the wrong hands they can be dangerous.
Some people get hinky around big, powerful tablesaws, too. I don’t fault them for that–tablesaws can be dangerous if used improperly, just as guns can be.
I won’t stand for anyone trying to prohibit me from owning any of the above.
RTO, exactly what was I sounding off on that “I don’t know what I am talking about?”
Can’t be Koresh, ‘cause I know the ins and outs of that case.
Could it be that I wrote “love guns”, instead of “love gun rights”? Geez, I thought a bunch of folks had decided to be literalists about a phrase I never intended any insult from. Then again, you riding to the rescue with a snarky comment is a little par for the course.
OT, are you still overseas or have you gotten to come for a little while?
No, timmy, what you wrote was:
And I, and several others, have expicitly pointed out the dishonesty and bad faith in that statement. But in your typical knot-headed style you choose to ignore the precedents and compound your deceit by nit-picking RTOs addition as if none of the above had happened. That is why I have no respect for you, and delight in making a fool of you, although I do wish you would make it more of a challenge.
Some people get hinky around big, powerful tablesaws, too.
I hear ya. I feel the same way about any lathe with a swing greater than 16 inches.
As with most of what you post, it’s not evident from the content. I’m not willing to hijack Jeff’s blog for a discussion of it, though I’m certain, were you open to such, you’d find it educational.
I’ve been unable to help you with history, military matters or legal/Constitutional issues, so I have little hope for the present topic either.
While I doubt your sincerity in asking, for the benefit of others, I’ll answer. I’m home now. The rest of my battalion should be home too in a few more weeks.
I’m glad you’re back (seriously, this whole, I doubt your sincerity is weird).
As for Koresh, Mr. Koresh was investigated for having automatic weapons (illegally) and for child abuse. The raid was botched and a siege ensued. That’s pretty thumbnail, but hits the highlights. The Davidians had automatic weapons and hand grenades (soem reports at the time suggested they possessed .50 caliber machine guns). Since no lawful American citizen could manage such an arsenal, and, since the government over-powered them at its will (tragically for the innocents inside), I will continue to believe that armed citizens in this country are no match for the fearsome might of this government. Not that I think it will come to that. As a person who neither owns guns nor sees the utility of owning a gun, I was responding to the “armed citizens” protect us from tyranny argument I read above.
Maybe in 1776 (and only effectively after Henry Knox secured the artillery of Fort Ticonderoga), but only governments own Blackhawks.
Anyway, it’s good to have you back and you’re right, had Koresh allowed the search warrant, he would be out of the pokey now and back with his people.
[…] both contemporaneous writings and intratextual patterns to argue for the framer’s intent, see my previous post here.] Texas law has long exempted people who have guns in their vehicles while “traveling” […]