We need not "repeal" the Second Amendment, just return it to its original meaning. As originally understood (and until Heller), the Second Amendment did not create an individual right to keep and bear arms, only a militia right. Rather than belabor this point in an extended post, I am linking to the two amicus briefs in Heller that made this point best. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
Interesting note - Dale Ho (current nominee to the SDNY) was one of the authors of the NAACP LDF amicus brief.
I agree with your view and Justice Stevens's dissent in Heller. But I think the likelihood of getting the current Supreme Court to revisit Heller is even lower than the likelihood of getting the Second Amendment formally repealed through Article V.
May 26, 2022·edited May 26, 2022Liked by David Lat
I cannot imagine a world where the Second Amendment gets repealed, but I can imagine a world where Heller gets overruled as poorly reasoned and impossible to implement.
A Constitutional Amendment would have to be ratified by 38 states (meaning a refusal by 13 states would block it). I cannot imagine ratification by: 1) West Virginia, 2) Alabama, 3) Mississippi, 4) Tennessee, 5) Kentucky, 6) Louisiana, 7) Arkansas, 8) North Dakota, 9) South Dakota, 10), Oklahoma, 11) Kansas, 12) Nebraska, 13) Wyoming, 14) Montana, 15) Ohio, 16) Indiana or 17) Alaska. It would be hard to see ratification in Texas or Florida, absent major electoral upheaval.
On the other hand, the Supreme Court could overrule Heller, with a flip of just three Justices. If a Democrat were to appoint the replacements for Thomas, Alito and Roberts, there would be a minimum of 5 votes to overrule Heller. This might take a decade or more.
Moreover, there is a non-de minimus chance that the Democrats will expand the number of Supreme Court justices to create a 7-6 liberal majority. That, of course, is contingent on the Democrats expanding their Senate majority sufficient to get the votes (because Manchin and Sinema have said they will not sign on).
There aren't many places where I view people's misinterpreting the law as deliberate. I try to avoid doing it -- both because it's not usually helpful to accuse people of dishonesty (whether or not it's true), and because most people try to act generally honestly, they're heroes in their own minds even when they're mistaken.
But the understanding of the prefatory clause in the Second Amendment comes about as close as it is possible to come. And given enough people who claim the position, I'm certain there are some where it is a decided, deliberate misinterpretation to push a desired policy aim -- even if most are merely honestly blinded by their own biases.
The prefatory clause, as Scalia describes, gives an *explanation*. It does not cabin the right, it does not define the right, it does not delimit the right. It says *because* a well-regulated militia is necessary for freedom...and then describes the actual operation of the amendment. Because a well-regulated militia is necessary, people have a right to keep and bear arms. Explanatory clauses like this were not uncommon in the constitutions of the time. The Constitution itself contains one, with regard to the Patent Clause. You can copyright creative works that are utterly frivolous -- not merely ones someone might describe as "useful Arts".
It is not an optional choice to treat the prefatory clause as merely explanatory. It follows directly from the grammar and meaning of the words. The prefatory clause cannot be supercharged with meaning to limit the right -- the tail wagging the dog. If the Constitution contained an amendment that said, "A well-educated voting populace being necessary to a free state, the right of the people to read books shall not be infringed.", the right recognized would be *for people to read books* -- not only books related to political matters, not limited only to actual or potential voters.
(And, no, "well regulated" does not mean regulation in the typical modern sense. It means "regulated" in the sense of a mechanical regulator, keeping something in functional order. A well regulated clock, in the parlance of the time, is a clock in proper working order. A well regulated militia, is one in proper working order -- including, with people who are practiced in the use of firearms, a level of practice that cannot be satisfied if they do not own them and cannot recreationally shoot them when they choose to. There are other aspects to a well regulated militia -- such as working together well -- that the right to keep and bear arms does not inherently provide. And that's why states also maintain organized militias, in addition to the militia made up of the people in general. But the explanation in the Second Amendment merely requires that the right recognized, *contribute* to the explanation. It does not require that the right supply every aspect of the explanation.)
What part of “ the right of the people to keep and bear Arms, shall not be infringed” is so hard to understand? I’m no lawyer but this is as plain as it can be. If you don’t like it, repeal it. Supreme Court just told you so. Like someone said if you have to ask for permission it isn’t a Right. Finally the federal government got put in its place and Dobbs ruling moves along the same line. When libs were getting their wishes granted by courts instead of going through legislative process, they loved it. Now when the court is going back to what the Fathers intended the libs want to start a revolution?
where do you see in the constitution that there's a right to EVERY SINGLE GUN THAT MIGHT BE AVAILABLE AT ANY TIME? using the logic of the current SCOTUS, there's no reason not to ban all guns but one exact type of gun - then there's still the right to bear arms. just one particular arm. that's no more illogical than somehow finding that women's autonomy over their own bodies isn't implicated by the anti-slavery ("no forced labor") right, or equal protection (when are men forced into medical conditions that last a year and could kill them? honestly, i'll wait....). big tell that you refer to the "Fathers" - yup, white men get to choose for all of us, ha - spoken like a true white man. maybe, how about we each get to choose for ourselves. and i'm not a "lib" - i'm a centrist, but you're not helping by sounding like a troll
The right to keep and hear arms is the second most important right in the Bill of Rights, right behind freedom of religion. Without the ability for citizens to defend themselves against tyranny, the rest of the rights are there in name only. Just look at Russia, North Korea, Iran, etc.
I'm don't agree with your ranking but I do with your conclusion. I think the behavior of both major parties and the general polarization of the populace is evidence enough that we are always just a few steps away from tyranny in one form or another.
I just happened to read Jonah Goldberg's Wednesday G-File and found this worthy of noting in this discussion: "Free societies—as most people understand the term—are not natural. Oligarchy, autocracy, cartelization, corporatism, socialism, strongmanism, tribalism, aristocracy, monarchy, etc.: These are the natural forms of human organization. And the whole point of the American experiment is to keep these things at bay." The 2nd Amendment is an intregal part of ensuring this.
I agree with your post. Would the Australia leadership have acted with such confidence if a good number of their citizens were still armed?
The most violent places in this country are cities with the strictest gun lows. Chicago and NYC are experiencing population loss in part due to the epidemic of violent crime.
Chicago lost 320,000 residents, many of them black. There is a political power play going on in the Chicago City Council over control of that body due to the loss of black residents. The Hispanic’s will control that body in a few years.
Chicago lost significant population in the last decade as evidenced by the loss of a congressional seat. Same for New York. The “ guns from Indiana” trope is political nonsense, that ironically prove guns don’t kill people…people kill people.
According to the Cato Institute (a Libertarian Think Tank) and its affiliated Human Freedom Index, Australia ranked #8 (out of 165 ranked countries) in the world for human freedom, with the United States lagging behind at #15.
Spoken like a man who can't have his womb taken over by the state- I think the right not to be forced into slavery - which also should be read to apply to forced labor and forced birth - is more important than the right to be a he-man and own a big gun. (I'm not anti-gun ownership but let's be real here, slavery is worse than being unarmed, no?)
Since when did the State take over the womb and force sexual intercourse. And since when do babies not have the right not to be murdered? There is a reason the left is hiding behind fake screennames; the law and facts are not on their side.
Have you heard of something called rape? that's forced sexual intercourse, man. and, maybe do a little research as to abortion laws around the world. I don't have a problem with 15-week bans actually (um, centrist here so stop with that "left" crap thank you) - 15-week bans are actually fairly commonplace around the world - but a 6-week ban or full ban is insane. and man - man, you are a man - you can believe anything you want but you shouldn't get to decide for the rest of us, man. man man man man. controlling man. and again i'm a centrist, not a "lefty"- man. so just go bully someone else. thank you.
David, I think your statement about what a Republic needs and what rights are basic is very D.C. Lawyer-centric. Millions upon millions use their gun every day but do not publish or even speak on issues or go to church. I also think as crime rises to choose this very moment to tell people to trust the police alone--who have been demonized for 2 years, is ludicrous. I also think the idea that gun ownership is a relic of the 18th century is nonsense by Justice Stevens. But as usual you are 100% honest which is not the case with most opponents of the 2nd Amendment in my experience.
You might very well be right. I will admit that even though I favor strong gun control, I also do not mind the fact that my husband has guns in our house and knows how to use them (especially after a disturbing incident we had a few weeks ago with a mentally ill person who showed up on our porch rather late at night).
There was no constitutional right to individual gun ownership for 200 years until Heller. We are living in another one of those eras in which the Supreme Court has lost its mind (like when the first Justice Harlan was dissenting). We need a return to normal. Soon.
A most refreshing read. I very much agree with you. How about we start by making it easier to amend the constitution - it was not meant to be so sclerotic and ossified - and then revisit the second amendment?
Perhaps someone in this long (and very sincere) thread has already quoted Dave Chappelle’s take on the Second Amendment: “The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out.” Mr. Chappelle, with economy and clarity not often achieved by constitutional commentators, sets forth the very essence of why we have and must keep the Second Amendment.
The provision wasn't about "guns." It is structured to ensure the individual's liberty and to hold the slippery slope of potential federal tyranny at bay. No one just wakes up in the gulag.
The right to bear arms is the right that ensures the rest of the constitution remains in force and applicable. The right of the people to keep and bear arms in order to form a militia if needed. If the people cannot individually bear arms then how would a militia be formed? This would be trading one form of potential tyranny for another.
Yes, for a variety of reasons. If the imputed right to privacy is sufficient to establish the right to an abortion, then a right of armed self-defense does not seem an outrage. Years ago my wife and I lived in a rural area 12 miles from the nearest town of 15,000 (Hanover, NH). The village we lived in had no night police coverage. The state police and Hanover police provided mutual aid after hours. One weeknight at 2:30 am, four men tried to break into our home. My wife dialed 911. I went downstairs in the dark with a 12 gauge shotgun and a pistol. As the first man entered our doorway I turned on the lights and aimed the shotgun in his face. Unsurprisingly he and his friends left the doorway. Rather than leaving our property they began looking for other ways to gain entry. Fortunately after ten terrifying minutes the police arrived and arrested the four men at gun point. Ten minutes further on the state police arrived and transported the men to the county jail. Some of our friends were shocked by my behavior, suggesting the men were just out for a joy ride and looking for booze. A year later, two young men from VT entered a Hanover home owned by the Zantops, a Dartmouth faculty couple and murdered them in cold blood. The right of armed self defense is as important as any of the others in the bill of rights.
No, held overnight then released. We were never asked if we cared to press charges. They likely would have been let off as our front door was unlocked (most who live in the country don’t lock their doors). The practical problem (one of many) is that the country is awash with guns. On the constitutional theory side, self-defense seems like a right when the state is unable or unwilling to provide adequate protection of life and property.
It is hard to argue for a full repeal. But there should definitely exist more limitations than what's currently imposed. As I write this, please note that these views are colored by my experience growing up in Venezuela under Chavez and Maduro.
The best way to answer your question is to ask ourselves what the raison d'etre for the amendment is; the point on which your third argument seems to focus. From the post, the comments below and much of the debate over the years, the locus for this amendment seems to be grassroots national defense (militias) and/or the threat of violent revolution in the face of tyranny being ever present in a tyrant-to-be's mind (deterrence). Let me throw the zombie apocalypse in to for the sake of popular culture justifications!
The first argument comparing rights seems more subjective than the other two (this is less important than that) and it could be subject to co-causalities. It could be argued that the other rights are not guaranteed without the ultimate threat of force in defense of them. This puts us back at deterrence (cf. your third argument). The second argument on Federalism does not convince me because it is bound to generate ample heterogeneity in gun laws among neighboring states. What could happen in the many cities that sit upon state borders? Isn't the whole point of the constitution and federal laws to bring an acceptable degree of homogeneity to what started as a confederation? Also, guns are a two equilibrium game in game theory: either everyone has them or nobody has them in order to get to a good outcome. Could the same be true at the level of state relationships? Not sure. We can't know counterfactuals and one should always be wary of assuming them.
As you argue, we do not know whether weaker gun laws would have led to more deaths in some cities. You also argue that "we have been able to address [problems] through the normal political processes" but we also don't know whether the political solutions would have been, on average, less successful over time without this deterrent. The counterfactual is, as all are, unknowable.
So, what do we know? That the most proffered reason for the 2nd amendment's existence is to protect the people from tyranny and to protect themselves. I'm amenable to this argument and I don't find it to be a relic. That it hasn't been necessary to use weapons in resolving political disputes in the U.S. for so many years could as easily be attributed to the existence of the amendment itself. One need only look at other nation-states to notice this reason is as old as humanity and just as fecund. On the individual protection front, it is highly unlikely that bad actors would turn their weapons in, which leaves the situation even more unbalanced.
But how much deterrence do we need for a potential tyrant? Could we really not do away with mentally unstable patriots-to-be? How about known criminals? Even in zombie-apocalypse shows these are the peeps that end up killing their fellow humans with guns! This is supposedly a system of "ordered liberties." Put some order.
I would be against it. I might even fight it using my guns if I thought there was any chance of victory.
A lot of people think the 2A should have been the first because the others depend upon it. It’s naive given history to trust governments even elected ones. It is also unrealistic to believe a popular uprising would also fail given our modern military. Louis 16th’s army was more than adequate if they were willing to wholesale slaughter their own citizens. Any army fighting it’s own people will fragment and often switch sides. Trusting them to do so without an armed citizenry is being too trusting.
I do appreciate that you admit truly ending the violence by cutting the supply of weapons is futile unless done so wholesale.
We have a sick culture and fixing that would help a lot. Red flag laws can’t hurt. Build an app for verifying anyone that wants to buy a gun anywhere.
A very rare breed of crazy has learned they can hurt us and get fame by killing what we treasure most. It’s often done by otherwise non-criminal citizenry so prevention is hard. For now I would fortify the schools and I would set expectations for those guards.
Sadly the police lingered for almost an hour outside in TX. I can’t imagine as a private citizen even if I had only a knife I wouldn’t go in and try to save those kids. Waiting for SWAT is not acceptable. The school was also negligent in securing their doors. We need inspectors to verify security. A lot can be done but the eradication of all guns is too far for me and anything else won’t work in the realm of gun control.
If you could wave a magic wand and disarm the civilian population of the US instantly, what would the result be? There would be far fewer random mass murders (Las Vegas, Sandy Hook, etc.) There would be far few murders committed by criminals and gang members. Yes, you can still kill people with knives and bombs, but that's harder, slower, and more dangerous for the perp. The US would be a much safer country in terms of personal safety. Hunters would have to learn to use bows and arrows. Recreational shooters would have to take up a different hobby. Militia members could go to law school if they needed some outlet for their antisocial leanings. Now of course this is a fantasy, because even if you could repeal the Second Amendment and outlaw private ownership of guns, the transition costs would be huge. By transition costs I mean the period of time it would take to disarm the population -- probably decades -- during which the criminals would all have guns and law abiding citizens would be defenseless. But it's a useful thought experiment nonetheless.
The world he describes involves decades where law abiding citizens are defenseless because they can't own guns, but criminals still have lots of guns. Is that the part that doesn't sound bad?
You are “fighting the hypothetical,” as judges likes to say at oral argument. In Douglas’s thought experiment, the criminals lose the guns too. Only the military has guns (in his imaginary world).
In Douglas's thought experiment, he explicitly said the criminals would have all the guns, and the law abiding citizens would be defenseless. Which I think is the only possible outcome if we were to try to disarm the civilian population.
Reread his post. The thought experiment is the first part involving the magic wand, which takes guns away from the entire civilian population. The part you reference is when he leaves the thought experiment and tries to imagine actually implementing this, and during a transitional period, the criminals would have more guns. But the thought experiment or hypo disarms everyone.
Consider the inverse to the magic wand described in thought experiment above. Instead, consider a magic wand that arms the entire population (Akin to a constitutional amendment that obligates all citizens to bear arms). Wouldn't that eliminate the existence of so-called soft targets (i.e., places known by bad guys to have no guns defending them)? Would knowing that everyone is armed give pause to bad guys that seem to enjoy the benefits of exploiting that kind of vulnerability, and which stacks the deck in favor of the bad guys in obtaining their desired outcome?
We actually have the example of Australia drastically reducing privately held firearms in the 90s, through a buyback, registration requirement and importation ban. The results were almost entirely salutary. Murders went down. Suicides went down (although there may have been other mental health initiatives that helped with this). Don't take my word for it. Here is a link to the Rand Corporation analysis: https://www.rand.org/research/gun-policy/analysis/essays/1996-national-firearms-agreement.html
Interesting example. At the same time, the US, which took almost no action against privately held firearms, also saw rapid reductions in homicides. And, the reductions in the US continued essentially unbroken until 2020. Perhaps there's some other factor at work.
Don't get me wrong, I think the absence of gun control in our country is crazy. But I attribute a lot less to the Constitution than you do. It is a place where we hand our arguments but not, in my view, really all that consequential. So I am not sure it is "leading" to anything, although we lawyers like to act as if it does great things. Just my opinion.
I would hypothetically support repealing the 2nd Amendment. Since the process for amending the Constitution makes that unlikely, however, what I would support would be continuing efforts to get the Supreme Court to modify its extremist interpretation of the 2nd Amendment, which in its current version treats the "well-ordered militia" language as inoperative and fails to recognize the necessity of allowing states to enact reasonable regulations as a matter of public safety. Agree with those who argue that states should at least be allowed to enact reasonable licensing schemes similar to what they do for driving motor vehicles, and should be able to set reasonable criteria for eligibility for a license.
Congress could go a long way by (1) reenacting the federal assault weapons ban or at the very least banning large-capacity magazines nationwide, (2) repealing the PLCAA so gunmakers have some incentive to be concerned about where their products end up and what they are used for, and (3) repealing/refusing to enact Tiahart amendments so researchers and policymakers can study gun-related data to determine what works and what doesn't when it comes to gun control. The Tiahrt amendments begin in 2003, the assault weapons ban was allowed to sunset in 2004, allowing gunmakers to begin mass-producing AR-15s and large-capacity magazines, and the PLCAA was passed in 2005, protecting gunmakers from liability for doing so, regardless of the consequences. (Then, of course, Heller came in 2008.) Obviously lots of factors at play, but compare mass shooting data before 2003 and since 2008 and draw your own conclusions. Oh wait, you want better data? Right...
I've always thought the answer to be, yes, clearly, for all the reasons you layout. People get overly attached to tradition and suffer from status quo bias.
That being said mass shootings dont actually kill many people, they just kill them in an "exciting" and particularly violent way that causes people to want to watch the aftermath on TV.
May 26, 2022·edited May 26, 2022Liked by David Lat
I wholeheartedly agree with you, and John Paul Stevens, that we should repeal the Second Amendment. Even in a world pre-Heller, where restrictions and regulations on gun ownership can be implemented on nearly any reasonable basis and are left to individual states to determine, the mere presence of the Second Amendment guarantees that the NRA, or anyone, really, willing to challenge gun restriction laws on the basis of constitutional rights, will file suit in order to return to a post-Heller world. In other words, given the history of the Second Amendment and personal gun ownership (Miller, Heller, etc) - it is up the Supreme Court, not legislatures, to determine if, who, and how guns are owned in this country.
There are arguments to be made on both sides of the Second Amendment debate, and that is the problem.
Personally, I think that nothing should change (i.e. no undue burdens should exist) for responsible gun owners in a Second Amendment-less world. In such a world, governments / the people will be free from the Second Amendment distraction that it has become, and free to enact common-sense regulations on guns, just as they regulate cars, planes, and whatever else makes life scary and/or dangerous in this big world.
Unfortunately, even though repealing the Second Amendment is what should happen (according to the few of us), it probably serves as a red herring to the bigger challenge of implementing middle-ground gun safety measures. Republicans and traditionalists will (rightly?) point the finger and say, "Look, they're really just trying to wreck our way of life and take away our constitutional rights - they deserve to get nothing." The debate will turn into an argument about the constitution, tradition, and other topics not relevant to major issue at hand: instituting gun safety measures to reduce gun violence. Full repeal, even if it is what should happen, is too big a bite to take right now, if ever.
I totally agree with you that (1) this isn’t happening and (2) the fact that it’s in the Constitution gives anti-regulation people a talking point. I’ve been told my views are “un-American” because “hey, it’s in the Constitution!”
We need not "repeal" the Second Amendment, just return it to its original meaning. As originally understood (and until Heller), the Second Amendment did not create an individual right to keep and bear arms, only a militia right. Rather than belabor this point in an extended post, I am linking to the two amicus briefs in Heller that made this point best. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
Interesting note - Dale Ho (current nominee to the SDNY) was one of the authors of the NAACP LDF amicus brief.
I agree with your view and Justice Stevens's dissent in Heller. But I think the likelihood of getting the current Supreme Court to revisit Heller is even lower than the likelihood of getting the Second Amendment formally repealed through Article V.
I cannot imagine a world where the Second Amendment gets repealed, but I can imagine a world where Heller gets overruled as poorly reasoned and impossible to implement.
A Constitutional Amendment would have to be ratified by 38 states (meaning a refusal by 13 states would block it). I cannot imagine ratification by: 1) West Virginia, 2) Alabama, 3) Mississippi, 4) Tennessee, 5) Kentucky, 6) Louisiana, 7) Arkansas, 8) North Dakota, 9) South Dakota, 10), Oklahoma, 11) Kansas, 12) Nebraska, 13) Wyoming, 14) Montana, 15) Ohio, 16) Indiana or 17) Alaska. It would be hard to see ratification in Texas or Florida, absent major electoral upheaval.
On the other hand, the Supreme Court could overrule Heller, with a flip of just three Justices. If a Democrat were to appoint the replacements for Thomas, Alito and Roberts, there would be a minimum of 5 votes to overrule Heller. This might take a decade or more.
Moreover, there is a non-de minimus chance that the Democrats will expand the number of Supreme Court justices to create a 7-6 liberal majority. That, of course, is contingent on the Democrats expanding their Senate majority sufficient to get the votes (because Manchin and Sinema have said they will not sign on).
Fair points. Unfortunately, I'm still not optimistic about Heller getting overruled, at least not anytime in the next decade....
So you're telling me there's a chance.
https://youtu.be/gqdNe8u-Jsg?t=51
Right. Stare decisis applies to Gekler but not to Roe.
There aren't many places where I view people's misinterpreting the law as deliberate. I try to avoid doing it -- both because it's not usually helpful to accuse people of dishonesty (whether or not it's true), and because most people try to act generally honestly, they're heroes in their own minds even when they're mistaken.
But the understanding of the prefatory clause in the Second Amendment comes about as close as it is possible to come. And given enough people who claim the position, I'm certain there are some where it is a decided, deliberate misinterpretation to push a desired policy aim -- even if most are merely honestly blinded by their own biases.
The prefatory clause, as Scalia describes, gives an *explanation*. It does not cabin the right, it does not define the right, it does not delimit the right. It says *because* a well-regulated militia is necessary for freedom...and then describes the actual operation of the amendment. Because a well-regulated militia is necessary, people have a right to keep and bear arms. Explanatory clauses like this were not uncommon in the constitutions of the time. The Constitution itself contains one, with regard to the Patent Clause. You can copyright creative works that are utterly frivolous -- not merely ones someone might describe as "useful Arts".
It is not an optional choice to treat the prefatory clause as merely explanatory. It follows directly from the grammar and meaning of the words. The prefatory clause cannot be supercharged with meaning to limit the right -- the tail wagging the dog. If the Constitution contained an amendment that said, "A well-educated voting populace being necessary to a free state, the right of the people to read books shall not be infringed.", the right recognized would be *for people to read books* -- not only books related to political matters, not limited only to actual or potential voters.
(And, no, "well regulated" does not mean regulation in the typical modern sense. It means "regulated" in the sense of a mechanical regulator, keeping something in functional order. A well regulated clock, in the parlance of the time, is a clock in proper working order. A well regulated militia, is one in proper working order -- including, with people who are practiced in the use of firearms, a level of practice that cannot be satisfied if they do not own them and cannot recreationally shoot them when they choose to. There are other aspects to a well regulated militia -- such as working together well -- that the right to keep and bear arms does not inherently provide. And that's why states also maintain organized militias, in addition to the militia made up of the people in general. But the explanation in the Second Amendment merely requires that the right recognized, *contribute* to the explanation. It does not require that the right supply every aspect of the explanation.)
Scalia got the history wrong. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
What part of “ the right of the people to keep and bear Arms, shall not be infringed” is so hard to understand? I’m no lawyer but this is as plain as it can be. If you don’t like it, repeal it. Supreme Court just told you so. Like someone said if you have to ask for permission it isn’t a Right. Finally the federal government got put in its place and Dobbs ruling moves along the same line. When libs were getting their wishes granted by courts instead of going through legislative process, they loved it. Now when the court is going back to what the Fathers intended the libs want to start a revolution?
where do you see in the constitution that there's a right to EVERY SINGLE GUN THAT MIGHT BE AVAILABLE AT ANY TIME? using the logic of the current SCOTUS, there's no reason not to ban all guns but one exact type of gun - then there's still the right to bear arms. just one particular arm. that's no more illogical than somehow finding that women's autonomy over their own bodies isn't implicated by the anti-slavery ("no forced labor") right, or equal protection (when are men forced into medical conditions that last a year and could kill them? honestly, i'll wait....). big tell that you refer to the "Fathers" - yup, white men get to choose for all of us, ha - spoken like a true white man. maybe, how about we each get to choose for ourselves. and i'm not a "lib" - i'm a centrist, but you're not helping by sounding like a troll
Troll? Just take amotions and insults out of your post and you have nothing left at all...
The right to keep and hear arms is the second most important right in the Bill of Rights, right behind freedom of religion. Without the ability for citizens to defend themselves against tyranny, the rest of the rights are there in name only. Just look at Russia, North Korea, Iran, etc.
I’d say freedom of speech is up there as one of the most important. Another one under pressure today.
Add to that Australia and China. The severity and tyrannical nature of lockdowns in countries where the citizens don’t have guns is patently obvious.
I'm don't agree with your ranking but I do with your conclusion. I think the behavior of both major parties and the general polarization of the populace is evidence enough that we are always just a few steps away from tyranny in one form or another.
I just happened to read Jonah Goldberg's Wednesday G-File and found this worthy of noting in this discussion: "Free societies—as most people understand the term—are not natural. Oligarchy, autocracy, cartelization, corporatism, socialism, strongmanism, tribalism, aristocracy, monarchy, etc.: These are the natural forms of human organization. And the whole point of the American experiment is to keep these things at bay." The 2nd Amendment is an intregal part of ensuring this.
This attitude that religion and guns are tied together is one of the many reasons I left organized Christianity and no longer attend church
I agree with your post. Would the Australia leadership have acted with such confidence if a good number of their citizens were still armed?
The most violent places in this country are cities with the strictest gun lows. Chicago and NYC are experiencing population loss in part due to the epidemic of violent crime.
Chicago in fact is not seeing population loss, despite its borders being overrun with guns from Indiana.
Chicago lost 320,000 residents, many of them black. There is a political power play going on in the Chicago City Council over control of that body due to the loss of black residents. The Hispanic’s will control that body in a few years.
Chicago lost significant population in the last decade as evidenced by the loss of a congressional seat. Same for New York. The “ guns from Indiana” trope is political nonsense, that ironically prove guns don’t kill people…people kill people.
https://www.rand.org/research/gun-policy/analysis/essays/1996-national-firearms-agreement.html
This, however coincidentally occurred during the advent of Broken Windows policing.
Broken Windows was not, to my knowledge, imposed in Australia.
Didn’t mean to imply it was. Gun confiscation was employed there. That may be why the citizens had to endure oppressive lockdowns during the pandemic.
Australia is a mess, and it is not a free country anymore. They have whta they voted for though. It is never happening here.
According to the Cato Institute (a Libertarian Think Tank) and its affiliated Human Freedom Index, Australia ranked #8 (out of 165 ranked countries) in the world for human freedom, with the United States lagging behind at #15.
https://worldpopulationreview.com/country-rankings/freedom-index-by-country
Spoken like a man who can't have his womb taken over by the state- I think the right not to be forced into slavery - which also should be read to apply to forced labor and forced birth - is more important than the right to be a he-man and own a big gun. (I'm not anti-gun ownership but let's be real here, slavery is worse than being unarmed, no?)
Since when did the State take over the womb and force sexual intercourse. And since when do babies not have the right not to be murdered? There is a reason the left is hiding behind fake screennames; the law and facts are not on their side.
Have you heard of something called rape? that's forced sexual intercourse, man. and, maybe do a little research as to abortion laws around the world. I don't have a problem with 15-week bans actually (um, centrist here so stop with that "left" crap thank you) - 15-week bans are actually fairly commonplace around the world - but a 6-week ban or full ban is insane. and man - man, you are a man - you can believe anything you want but you shouldn't get to decide for the rest of us, man. man man man man. controlling man. and again i'm a centrist, not a "lefty"- man. so just go bully someone else. thank you.
David, I think your statement about what a Republic needs and what rights are basic is very D.C. Lawyer-centric. Millions upon millions use their gun every day but do not publish or even speak on issues or go to church. I also think as crime rises to choose this very moment to tell people to trust the police alone--who have been demonized for 2 years, is ludicrous. I also think the idea that gun ownership is a relic of the 18th century is nonsense by Justice Stevens. But as usual you are 100% honest which is not the case with most opponents of the 2nd Amendment in my experience.
You might very well be right. I will admit that even though I favor strong gun control, I also do not mind the fact that my husband has guns in our house and knows how to use them (especially after a disturbing incident we had a few weeks ago with a mentally ill person who showed up on our porch rather late at night).
There was no constitutional right to individual gun ownership for 200 years until Heller. We are living in another one of those eras in which the Supreme Court has lost its mind (like when the first Justice Harlan was dissenting). We need a return to normal. Soon.
Actually, there was such a right, but it was largely infringed by many states until Heller.
A most refreshing read. I very much agree with you. How about we start by making it easier to amend the constitution - it was not meant to be so sclerotic and ossified - and then revisit the second amendment?
I totally agree on making it easier to amend the Constitution! And we are in good company; many professors of constitutional law agree as well.
Perhaps someone in this long (and very sincere) thread has already quoted Dave Chappelle’s take on the Second Amendment: “The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out.” Mr. Chappelle, with economy and clarity not often achieved by constitutional commentators, sets forth the very essence of why we have and must keep the Second Amendment.
The provision wasn't about "guns." It is structured to ensure the individual's liberty and to hold the slippery slope of potential federal tyranny at bay. No one just wakes up in the gulag.
The right to bear arms is the right that ensures the rest of the constitution remains in force and applicable. The right of the people to keep and bear arms in order to form a militia if needed. If the people cannot individually bear arms then how would a militia be formed? This would be trading one form of potential tyranny for another.
Watch 2000Mules the movie.
jfc, you had me until 2000 Mules
Never saw the movie, but have you? If you haven't then I don't understand how you can have an opinion.
Because others have and have reported how it’s factually inaccurate?
Yes, for a variety of reasons. If the imputed right to privacy is sufficient to establish the right to an abortion, then a right of armed self-defense does not seem an outrage. Years ago my wife and I lived in a rural area 12 miles from the nearest town of 15,000 (Hanover, NH). The village we lived in had no night police coverage. The state police and Hanover police provided mutual aid after hours. One weeknight at 2:30 am, four men tried to break into our home. My wife dialed 911. I went downstairs in the dark with a 12 gauge shotgun and a pistol. As the first man entered our doorway I turned on the lights and aimed the shotgun in his face. Unsurprisingly he and his friends left the doorway. Rather than leaving our property they began looking for other ways to gain entry. Fortunately after ten terrifying minutes the police arrived and arrested the four men at gun point. Ten minutes further on the state police arrived and transported the men to the county jail. Some of our friends were shocked by my behavior, suggesting the men were just out for a joy ride and looking for booze. A year later, two young men from VT entered a Hanover home owned by the Zantops, a Dartmouth faculty couple and murdered them in cold blood. The right of armed self defense is as important as any of the others in the bill of rights.
This is crazy! Were they prosecuted?
No, held overnight then released. We were never asked if we cared to press charges. They likely would have been let off as our front door was unlocked (most who live in the country don’t lock their doors). The practical problem (one of many) is that the country is awash with guns. On the constitutional theory side, self-defense seems like a right when the state is unable or unwilling to provide adequate protection of life and property.
It is hard to argue for a full repeal. But there should definitely exist more limitations than what's currently imposed. As I write this, please note that these views are colored by my experience growing up in Venezuela under Chavez and Maduro.
The best way to answer your question is to ask ourselves what the raison d'etre for the amendment is; the point on which your third argument seems to focus. From the post, the comments below and much of the debate over the years, the locus for this amendment seems to be grassroots national defense (militias) and/or the threat of violent revolution in the face of tyranny being ever present in a tyrant-to-be's mind (deterrence). Let me throw the zombie apocalypse in to for the sake of popular culture justifications!
The first argument comparing rights seems more subjective than the other two (this is less important than that) and it could be subject to co-causalities. It could be argued that the other rights are not guaranteed without the ultimate threat of force in defense of them. This puts us back at deterrence (cf. your third argument). The second argument on Federalism does not convince me because it is bound to generate ample heterogeneity in gun laws among neighboring states. What could happen in the many cities that sit upon state borders? Isn't the whole point of the constitution and federal laws to bring an acceptable degree of homogeneity to what started as a confederation? Also, guns are a two equilibrium game in game theory: either everyone has them or nobody has them in order to get to a good outcome. Could the same be true at the level of state relationships? Not sure. We can't know counterfactuals and one should always be wary of assuming them.
As you argue, we do not know whether weaker gun laws would have led to more deaths in some cities. You also argue that "we have been able to address [problems] through the normal political processes" but we also don't know whether the political solutions would have been, on average, less successful over time without this deterrent. The counterfactual is, as all are, unknowable.
So, what do we know? That the most proffered reason for the 2nd amendment's existence is to protect the people from tyranny and to protect themselves. I'm amenable to this argument and I don't find it to be a relic. That it hasn't been necessary to use weapons in resolving political disputes in the U.S. for so many years could as easily be attributed to the existence of the amendment itself. One need only look at other nation-states to notice this reason is as old as humanity and just as fecund. On the individual protection front, it is highly unlikely that bad actors would turn their weapons in, which leaves the situation even more unbalanced.
But how much deterrence do we need for a potential tyrant? Could we really not do away with mentally unstable patriots-to-be? How about known criminals? Even in zombie-apocalypse shows these are the peeps that end up killing their fellow humans with guns! This is supposedly a system of "ordered liberties." Put some order.
I would be against it. I might even fight it using my guns if I thought there was any chance of victory.
A lot of people think the 2A should have been the first because the others depend upon it. It’s naive given history to trust governments even elected ones. It is also unrealistic to believe a popular uprising would also fail given our modern military. Louis 16th’s army was more than adequate if they were willing to wholesale slaughter their own citizens. Any army fighting it’s own people will fragment and often switch sides. Trusting them to do so without an armed citizenry is being too trusting.
I do appreciate that you admit truly ending the violence by cutting the supply of weapons is futile unless done so wholesale.
We have a sick culture and fixing that would help a lot. Red flag laws can’t hurt. Build an app for verifying anyone that wants to buy a gun anywhere.
A very rare breed of crazy has learned they can hurt us and get fame by killing what we treasure most. It’s often done by otherwise non-criminal citizenry so prevention is hard. For now I would fortify the schools and I would set expectations for those guards.
Sadly the police lingered for almost an hour outside in TX. I can’t imagine as a private citizen even if I had only a knife I wouldn’t go in and try to save those kids. Waiting for SWAT is not acceptable. The school was also negligent in securing their doors. We need inspectors to verify security. A lot can be done but the eradication of all guns is too far for me and anything else won’t work in the realm of gun control.
So short run: fortify. Long run: fix the culture.
If you could wave a magic wand and disarm the civilian population of the US instantly, what would the result be? There would be far fewer random mass murders (Las Vegas, Sandy Hook, etc.) There would be far few murders committed by criminals and gang members. Yes, you can still kill people with knives and bombs, but that's harder, slower, and more dangerous for the perp. The US would be a much safer country in terms of personal safety. Hunters would have to learn to use bows and arrows. Recreational shooters would have to take up a different hobby. Militia members could go to law school if they needed some outlet for their antisocial leanings. Now of course this is a fantasy, because even if you could repeal the Second Amendment and outlaw private ownership of guns, the transition costs would be huge. By transition costs I mean the period of time it would take to disarm the population -- probably decades -- during which the criminals would all have guns and law abiding citizens would be defenseless. But it's a useful thought experiment nonetheless.
Yes, a very good thought experiment—and speaking for myself, the world you describe doesn't sound bad at all.
The world he describes involves decades where law abiding citizens are defenseless because they can't own guns, but criminals still have lots of guns. Is that the part that doesn't sound bad?
You are “fighting the hypothetical,” as judges likes to say at oral argument. In Douglas’s thought experiment, the criminals lose the guns too. Only the military has guns (in his imaginary world).
In Douglas's thought experiment, he explicitly said the criminals would have all the guns, and the law abiding citizens would be defenseless. Which I think is the only possible outcome if we were to try to disarm the civilian population.
Reread his post. The thought experiment is the first part involving the magic wand, which takes guns away from the entire civilian population. The part you reference is when he leaves the thought experiment and tries to imagine actually implementing this, and during a transitional period, the criminals would have more guns. But the thought experiment or hypo disarms everyone.
Consider the inverse to the magic wand described in thought experiment above. Instead, consider a magic wand that arms the entire population (Akin to a constitutional amendment that obligates all citizens to bear arms). Wouldn't that eliminate the existence of so-called soft targets (i.e., places known by bad guys to have no guns defending them)? Would knowing that everyone is armed give pause to bad guys that seem to enjoy the benefits of exploiting that kind of vulnerability, and which stacks the deck in favor of the bad guys in obtaining their desired outcome?
We actually have the example of Australia drastically reducing privately held firearms in the 90s, through a buyback, registration requirement and importation ban. The results were almost entirely salutary. Murders went down. Suicides went down (although there may have been other mental health initiatives that helped with this). Don't take my word for it. Here is a link to the Rand Corporation analysis: https://www.rand.org/research/gun-policy/analysis/essays/1996-national-firearms-agreement.html
Interesting example. At the same time, the US, which took almost no action against privately held firearms, also saw rapid reductions in homicides. And, the reductions in the US continued essentially unbroken until 2020. Perhaps there's some other factor at work.
Kevin Drum came up with a highly suggestive hypothesis, including cross-national comparisons, that suggests lead exposure in young children is the great common cause in crime rates rising (from roughly 1960 through 1995) and falling (post-1995). I think this was his first writing on the subject: https://www.motherjones.com/environment/2016/02/lead-exposure-gasoline-crime-increase-children-health/. This one extends the analysis, and uses the same methods to show the same relationships in other countries: https://www.motherjones.com/kevin-drum/2018/02/an-updated-lead-crime-roundup-for-2018/. Interestingly, Australia is one of the countries he addresses.
If you want to cite Australia as a positive example, you might note that Australia has nearly twice the burglary rate of the US: https://www.statista.com/statistics/1238258/burglary-rate-country/.
How about the quartering of troops in private residences?
I’d happily repeal that too! But its being on the books isn’t leading to any loss of life.
Don't get me wrong, I think the absence of gun control in our country is crazy. But I attribute a lot less to the Constitution than you do. It is a place where we hand our arguments but not, in my view, really all that consequential. So I am not sure it is "leading" to anything, although we lawyers like to act as if it does great things. Just my opinion.
*hang
I'm a Third Amendment absolutist.
I would hypothetically support repealing the 2nd Amendment. Since the process for amending the Constitution makes that unlikely, however, what I would support would be continuing efforts to get the Supreme Court to modify its extremist interpretation of the 2nd Amendment, which in its current version treats the "well-ordered militia" language as inoperative and fails to recognize the necessity of allowing states to enact reasonable regulations as a matter of public safety. Agree with those who argue that states should at least be allowed to enact reasonable licensing schemes similar to what they do for driving motor vehicles, and should be able to set reasonable criteria for eligibility for a license.
Congress could go a long way by (1) reenacting the federal assault weapons ban or at the very least banning large-capacity magazines nationwide, (2) repealing the PLCAA so gunmakers have some incentive to be concerned about where their products end up and what they are used for, and (3) repealing/refusing to enact Tiahart amendments so researchers and policymakers can study gun-related data to determine what works and what doesn't when it comes to gun control. The Tiahrt amendments begin in 2003, the assault weapons ban was allowed to sunset in 2004, allowing gunmakers to begin mass-producing AR-15s and large-capacity magazines, and the PLCAA was passed in 2005, protecting gunmakers from liability for doing so, regardless of the consequences. (Then, of course, Heller came in 2008.) Obviously lots of factors at play, but compare mass shooting data before 2003 and since 2008 and draw your own conclusions. Oh wait, you want better data? Right...
I've always thought the answer to be, yes, clearly, for all the reasons you layout. People get overly attached to tradition and suffer from status quo bias.
That being said mass shootings dont actually kill many people, they just kill them in an "exciting" and particularly violent way that causes people to want to watch the aftermath on TV.
I wholeheartedly agree with you, and John Paul Stevens, that we should repeal the Second Amendment. Even in a world pre-Heller, where restrictions and regulations on gun ownership can be implemented on nearly any reasonable basis and are left to individual states to determine, the mere presence of the Second Amendment guarantees that the NRA, or anyone, really, willing to challenge gun restriction laws on the basis of constitutional rights, will file suit in order to return to a post-Heller world. In other words, given the history of the Second Amendment and personal gun ownership (Miller, Heller, etc) - it is up the Supreme Court, not legislatures, to determine if, who, and how guns are owned in this country.
There are arguments to be made on both sides of the Second Amendment debate, and that is the problem.
Personally, I think that nothing should change (i.e. no undue burdens should exist) for responsible gun owners in a Second Amendment-less world. In such a world, governments / the people will be free from the Second Amendment distraction that it has become, and free to enact common-sense regulations on guns, just as they regulate cars, planes, and whatever else makes life scary and/or dangerous in this big world.
Unfortunately, even though repealing the Second Amendment is what should happen (according to the few of us), it probably serves as a red herring to the bigger challenge of implementing middle-ground gun safety measures. Republicans and traditionalists will (rightly?) point the finger and say, "Look, they're really just trying to wreck our way of life and take away our constitutional rights - they deserve to get nothing." The debate will turn into an argument about the constitution, tradition, and other topics not relevant to major issue at hand: instituting gun safety measures to reduce gun violence. Full repeal, even if it is what should happen, is too big a bite to take right now, if ever.
I totally agree with you that (1) this isn’t happening and (2) the fact that it’s in the Constitution gives anti-regulation people a talking point. I’ve been told my views are “un-American” because “hey, it’s in the Constitution!”