Location: Northern piedmont of Va. and Middle of Nowhere, West Virginia
Query In re: "The New Yorker" article and 2nd Amendment
Here's a question I received by email, and my response (email & website addresses removed to protect the senders):
> Can I have your insight on this subject?
> Thanking you in advance - --
> Sincerely, Berny Hostrop
> GBH Gunsmithing (Since 1950)
> NRA Master Training Counselor
> --Original Message--
> Hi All-
> I would be grateful for fact-checking and insights regarding the
> recent "New Yorker" article "Annals of Law: Bench Press" Sept. 21,
> On page 48, author states:
> 1) "For many decades, into the nineteen-eighties, it was widely agreed
> among judges and scholars that the right to bear arms belonged only to
> militias, and thus the Second Amendment imposed no limits on the
> ability of states and localities to enact gun-control laws. Warren
> E. Burger, the former Chief justice (and no liberal), said that any
> other view of the law was a ' fraud ' , and Robert Bork, the
> conservative hero, said much the same thing. But Meese and his allies
> in the National Rifle Association were indefatigable in pushing an
> opposing interpretation, and their position become widely adopted,
> first in the Republican Party, and then among many Democrats. Finally,
> in 2008, the Supreme Court, in an opinion written by Antonin Scalia
> (who was appointed while Meese was attorney general), struck down a
> District of Columbia gun-control law as a violation of the Second
> Amendment. A fringe position - a ' fraud ' - two decades earlier had
> become the law of the land."
> Is this an accurate portrayal of the statements and judicial views of
> Burger and Bork? Was this an ultra-minority fringe position 25 years
> ago? (I am older now, and my memory is less reliable than
> previously. Help and guidance would be appreciated.).
> Thank you,
> "Doc" Harter
That was, in fact, the view that jurists increasingly took between the early 1930's and the present. I think that it is because of the "standing professional army" problem that they thought that, as well as a growing view of the U.S. as a political entity hierarchically superior to the states, the power of which could be used to further the ends of various groups.
There's no question that the "founding fathers" were highly suspicious of a continuous professional military presence. The U.S. was intended to have no land-based military except when authorized by Congress (a Navy was seen as a continuing necessity, which is why the Department of the Navy and the Department of War were historically two separate units).
Thus, the military power of the United States lay in the state militias. And the militia of each state consisted of the able-bodied men of that state. The Virginia Code today provides for a militia, as defined in the attached code sections, that provides for just that.
So it is my opinion that when that language was written in the Constitution of Virginia, and subsequently copied into the U.S. Constitution as the Second Amendment, the word, "militia", referred to every able bodied man capable of mobilizing for defense against invasion. I suggest that now the term must be taken to include able-bodied women as well.
However, after the First World War, the Army was not dismantled, though it was drastically diminished, and people got used to the idea of a professional standing army. At the same time, various groups had the idea of taking over control of the United States politically and using its increasingly ascendent power over the states and the people, in order to assert their own agenda. Each such group wanted the U.S. to be in control, and would require a standing army to cement their own control, particularly the Socialists and Communists, who intended to take possession of private assets and whose experience in other countries suggested that military force would be required to do so. I suggest, though I haven't seen this in print anywhere, that every group that wants control of the country has been, and continues to be, aggressively recruiting people with sympathetic values to become judges, politicians, media spokesmen, and school teachers. And one thing all such groups share is the desire to control the military power of the United States, and to disarm the population generally. Hence the distinction that has developed between the original meaning of the term, "militia", and the modern concept of military power, and the restriction of the Second Amendment to the professional standing army.
§ 44-1. Composition of militia.
The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the National Guard, which includes the Army National Guard and the Air National Guard, the Virginia State Defense Force, the naval militia, and the unorganized militia.
§ 44-4. Composition of unorganized militia.
The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2, 44-3, and 44-54.6, and except such as may be exempted as hereinafter provided.
By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.
Re: Query In re: "The New Yorker" article and 2nd Amendment
As we all know, the Supreme Court did not want to opine on anything having to do with the Second Amendment for many, many years. Much due to the interpretation as well as the want to leave it to the states rights, however as noted in original query, Heller most certainly opened the window wherein the court had no choice.
But as mentioned, one must now go to the "Heller Decision" in which Justice Scalia delivered the opinion of the court. Although the decision went to typical liberal/truthful lines of those seated (vote of 5/4 split), the decision (although not outstandingly great) did set the tone for hopeful success in the future. But some of the greatness in the opinions expressed by the court was the diligence taken to express not only the written language, but that of the meaning of the day just as how the 1st amendment is relevant to the electronic age, as Justice Scalia mentions.
In the decision, Justice Scalia opines for the court several pertinent facts as to the defining of the "militia" and that of the "people." Here is an excerpt of that opinion:
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
To put this in context, let's go back to the actual article.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The oft times (intentional?) overlook is the strategically placed commas which separate the subject matter.
It is easy to become focused on the words such as "militia," but without the context of the punctuation, the intent can be easily combined which Scalia addresses quite eloquently. I think your response User, was well done and I offer these thoughts as an addendum to your thoughts.
T]he operative clause [of the Second Amendment] codifies a ‘right of the people.’ The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology . . . . All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body. Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right. . . . In all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset. . . . Justice Stevens is dead wrong to think that the right to petition is ‘primarily collective in nature.’”
On the Meaning of “Arms”
“The 18th-century meaning is no different from the meaning today. . . . The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. . . . Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
On the Meaning of “Keep Arms”
“[Samuel Johnson’s 18th century dictionary] defined ‘keep’ as, most relevantly, ‘[t]o retain; not to lose,’ and ‘[t]o have in custody.’ Webster defined it as ‘[t]o hold; to retain in one’s power or possession.’ No party has apprised us of an idiomatic meaning of ‘keep Arms.’ Thus, the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons’ . . . . [T]here is no evidence whatsoever to support a military reading of ‘keep arms.’
On the Meaning of “Bear Arms”
“At the time of the founding, as now, to ‘bear’ meant to ‘carry.’ When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose-confrontation. . . . Although the phrase implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense of himself and the state.’ It is clear from those formulations that ‘bear arms’ did not refer only to carrying a weapon in an organized military unit. . . .
“[T]he meaning of ‘bear arms’ that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby ‘bear arms’ connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving ‘bear Arms’ its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war-an absurdity that no commentator has ever endorsed. Worse still, the phrase ‘keep and bear Arms’ would be incoherent. The word ‘Arms’ would have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear’) one-half of an idiom. It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.
“If ‘bear arms’ means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (‘for the purpose of self defense’ or ‘to make war against the King’). But if ‘bear arms’ means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add ‘for the purpose of killing game.’ The right ‘to carry arms in the militia for the purpose of killing game’ is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that ‘to bear arms’ is not limited to military use.
On the Meaning of the Amendment’s “Keep and Bear” Clause in its Entirety
“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ As we said in United States v. Cruikshank, ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed.’
On the Meaning of “Well Regulated Militia”
“In United States v. Miller, we explained that ‘the Militia comprised all males physically capable of acting in concert for the common defense.’ That definition comports with founding-era sources. . . . Petitioners take a seemingly narrower view of the militia, stating that ‘[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses.’ Although we agree with petitioners’ interpretive assumption that ‘militia’ means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. . . . Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.
On the Meaning of “Security of a Free State”
“The phrase ‘security of a free state’ meant ‘security of a free polity,’ not security of each of the several States. Joseph Story wrote in his treatise on the Constitution that ‘the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.’
On the Relationship between the “Militia” and “Keep and Bear” Clauses
“Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right-unlike some other English rights-was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a ‘subsidiary interest’ of the right to keep and bear arms is profoundly mistaken.
On the Court’s Decision in United States v. Miller (1939)
“The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’ but for ‘nonmilitary use.’Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection. . . . This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did ‘not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,’ but the words of the opinion prove otherwise.
On Arms the Second Amendment Protects
“We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. . . . Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. . . .
“It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
On Restrictions Permissible Under the Second Amendment
“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’
On D.C.’s Gun Bans
“[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster. . . . It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. . . .
“We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self defense. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: ‘Except for law enforcement personnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.’ The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders. . . .
SecondAmendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. . . .[T]he 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.
Last edited by SaddleSarge; 09-20-2009 at 10:34 PM..
Re: Query In re: "The New Yorker" article and 2nd Amendment
My answer would be if it were true so what? Burger never took a 2nd Amendment case and Bork wasn't confirmed to the Supreme Court. The Roberts court did take a case and decided so it is an individual right.
As an interesting side note that I wasn't aware of Robert Bork was the acting Attorney General under Nixon that fired Archibald Cox and the act was referred to as the Saturday night massacre.
NRA and NAHC Life
"Both oligarch and tyrant mistrust the people, and therefore deprive them of their arms." -Aristotle