Wednesday, January 2, 2013

Thoughts on the Second Amendment

One of the things that is nice about becoming somewhat more widely read is that people sometimes ask me questions about things, and as a teacher there is nothing more fun than explaining how something works.  So when Ross wrote to me about the Second Amendment a couple of weeks ago I was happy to discuss it with him.  And the more I think about it, the more I think I should put that here too.

So, thanks, Ross!  A lot of this should look familiar to you.

The question on the table is whether the Second Amendment creates an individual right to own a firearm in this country.  The short answer is, “Now it does.”  The long answer, as with anything worth thinking about, is complicated.

On the one hand, the Founding Fathers did not create such a right. 

That was not their intention, nor did they write the Second Amendment to say any such thing.  If people would simply read the entire amendment instead of the mangled out-of-context bit that the NRA insists is the whole, they would see that fairly clearly.  The Second Amendment was written to provide a collective right for states to defend themselves against an encroaching tyranny (a very specific thing, mind you, as I will discuss below) should one arise, by allowing for a “well-regulated militia” to counter such a threat.

We no longer recognize this, because the mental world of the Founders disappeared around 1820 or so – disappeared so thoroughly that most Americans have no idea that it was ever any different.  But it was, and until you understand just how different the Second Amendment will make no sense to you.

All of modern American politics takes place within a very narrow spectrum of Lockean Liberalism today, and has since the early 1800s.  The driving force behind Liberalism is the notion of equality of opportunity – the level playing field – and depending on what playing field you most want to level and how, you will end up with very different political platforms.  If you want to level the economic playing field most of all, eventually you will find yourself touting the virtues of laissez-faire capitalism, small government, and libertarian ideals.  If you want to level the political playing field most of all, eventually you will find yourself touting the virtues of democracy, civil rights, and the strong and active government necessary to secure those rights from encroachments.  But it’s all Liberalism, one way or the other.

This is not the world of the Founders, not really.  While Liberalism was a growing force in the colonies after the First Great Awakening, the political world of the Founders remained largely defined by republicanism – “classical republicanism” or “neo-Harringtonian republicanism” if you want to get specific – until long after independence.  And in such a world the Second Amendment has a very specific meaning.

In republicanism, the driving force is not any notion of equality of opportunity.  Instead, the driving force is the conflict between liberty and power.  It is a zero-sum game – where one wins, the other by definition loses – and of the two it is far more likely for power to usurp liberty than for liberty to beat back power.  So the primary question for a good republican is how to arrange a government in such a way as to check power and preserve liberty.

The answer is to have a balanced republican government, where power is divided among different branches of government in such a way as to provide each branch with enough power to check the other two but not enough to take over the whole. 

Okay, fine.  How are you going to do that?  In other words, what are you balancing in a balanced republican government?

In classical republicanism, you are balancing social orders.  It is an ideology that assumes social hierarchy – that there is a single most important person in society (the One), a small group of nearly-that-important people (the Few), and a much larger group of everyone else (the Many).  Each order gets a branch of government – the One is the monarch, the Few is the aristocracy, and the Many is the Democracy.

Note that democracy is just one third of a balanced republican government.  We tend to forget that these days.  It’s just one more reason why the 18th-century world maps poorly onto that of the 21st century.

When the Constitution was written in 1787, one of its major intellectual achievements was adapting this republican structure to the rather flat social hierarchy of the new United States.  They did this by balancing the functions of government rather than balancing social orders – balancing the branches of government by what they do, rather than by who they represent.  So the One became the Executive Branch, the Few became the Judicial Branch, and the Many became the Legislative Branch.  But the principle is the same – you have to balance the One, the Few and the Many in order to check power and preserve liberty.

Note that the whole point of a judiciary is to tell the legislature and the executive what they can and cannot do.  That is their function in the properly balanced republican government set up by the Founding Fathers.  Remember that the next time some spittle-emitting moron starts shouting about “activist judges” getting in the way of their pet project.  That’s what the judiciary does.  It’s their job, and anyone who doesn’t understand that has no business discussing American politics with grown-ups.

Okay.  Balanced government achieved.  So what?

Well, the key question for us here is this: what happens when your government gets out of balance?

When one branch of a republican government starts to stomp on the turf of one or more of the other two, this was known as “corruption” – a jargon term in the 18th century, not the catch-all synonym for vice that we use it as today.  And depending on what form of corruption you got, the result was different.

If the Many took over, you got Anarchy.  When everyone is in charge, no one is in charge, and eventually the powerful will swoop in and destroy your liberty.  If the Few took over, you got Oligarchy – a sort of dictatorship by committee.  And if the One took over, you got Tyranny – note, a jargon term with this one very specific meaning, and not a general synonym for “a government that does something I personally do not like” the way modern Americans use the term.

Of the three, the Founding Fathers feared Tyranny the most.  Anarchy is by definition self-limiting, and as far as Oligarchy goes, well, seriously – how effective are most of the committees you’ve ever been on?  But a Tyranny was efficient.  It was effective.  And those were not considered necessarily positive traits in a government in the 18th century.  A Tyranny could well and truly destroy liberty forever.

True republicans therefore had to be constantly on their guard against even small incursions by the One against the prerogatives of the Few and the Many.

And what were the warning signs of impending Tyranny?

There were quite a few, but there were two big ones.

First, there was arbitrary taxation, used by the One to bankrupt his enemies and destroy them.  Thus you get the (by any objective standard) ridiculous overreaction by the colonies to the Stamp Act and other British revenue acts in the 1760s and 1770s that led to the Revolution itself.  The British had largely abandoned republicanism decades earlier and never did fully understand why the colonists were being so unreasonable about paying their fair share of the empire.

The second warning sign of impending tyranny was a standing army in time of peace.  And thus we come back to the Second Amendment.

A standing army in time of peace could only have one function to a proper republican – to allow the One to suppress the rights and liberties of the Few and the Many.  Thus the Founders wrote into the Bill of Rights an explicit guarantee that the states could field a defensive force against any Tyranny that might emerge out of the federal government (and again, remember the definition of Tyranny, which is most emphatically not “a government that does stuff I personally don’t like.”  You’d be surprised at how many times I have had to correct people on this point).

In other words, the Second Amendment was designed as a collective right belonging to the states, not as an individual right belonging to common citizens.

And it became obsolete very, very quickly, in much the same way that the Third Amendment did.

The whole notion that a militia could stand up to a professional army died an inglorious death during the War of 1812, and by that time the US had had a peacetime army for over a decade anyway.   And when republicanism dies out shortly after the War of 1812 (for other reasons), there is nobody left to pay attention to the rationale behind the Second Amendment at all.  It is a vestige of an earlier way of thinking that nobody had the forethought to repeal once that way of thinking disappeared, and here in the 21st century it has been reinterpreted to mean exactly what the Founders did not write it to mean.

This of course is the part that brings us to the “on the other hand” section of this post.

For centuries after the Second Amendment was ratified, judicial precedent largely upheld the Founders’ intent and declared that the Second Amendment did not guarantee any individual right to own a firearm.  US v Miller (1939), for example, explicitly noted that “In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”  Unless the gun in question was connected to the collective right of states to field militias, in other words, the ordinary citizen did not have a Constitutionally guaranteed right to own it.

Note that there was nothing in the Constitution that says you couldn’t have a gun, either.  Just that owning one wasn’t a right on the same individual level as free speech.

But here’s the thing.  The Constitution is not set in stone.  It is not something handed down from on high, inviolate and obvious.  There is no legitimate “Constitutional fundamentalism” in American law.  The Constitution means what the Supreme Court says it means, until such time as the Court decides to say that it means something else. 

And in DC v Heller (2008), the Court overturned more than two centuries of precedent and the expressed intent of the Founders to declare that the Second Amendment now encompasses an individual right to own a firearm unconnected with any militia or state.  This is a right created by the Court, based on their interpretation of the Constitution, in much the same way that the right to privacy was created in earlier cases.

So yes, today, the right of an individual American citizen to own a gun is now enshrined in the Constitution, regardless of anything that happened earlier, and it will remain enshrined there until such time as the Supreme Court decides to say that the Constitution means something else.

There are two things about the Heller decision that stand out, though.

First, that it was a tremendous example of judicial activism – of judges stepping in to reinterpret (or reinvent) standing law.  I have no particular issues with this – as noted above, that is the job of the judiciary under the Constitution, so even if I happen to disagree with their decision and even if I note that it runs counter to precedent and original intent, well, those thing happen.  The Founders understood quite well that times change and that the Constitution would be reinterpreted to suit them, and that was a feature not a bug.  If I want the Constitution to say something else on the matter, I suppose I need to get working on another case to bring to the Court and convince them to decide differently this time.

I do find it laughably ironic, however, that the very same crowd that usually goes red in the face and starts spluttering with incoherent rage about “activist judges” was so … eerily … quiet … about this decision.  Apparently judicial activism is okay for decisions right-wingers happen to like, but not for decisions they don’t like.

Good to know.

And second, the Court’s majority opinion in the Heller case – written by Antonin Scalia, so you know it’s as right-wing as you’re going to get – clearly states that the individual right to own a firearm, like every right in the Constitution, is not absolute.  “Like most rights, the right secured by the Second Amendment is not unlimited,” Scalia wrote.  “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … [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.”

In other words, even under Heller, even with the newly created individual right to own firearms, and even in the eyes of the most right-wing Supreme Court Justice in modern America, the plain and simple fact is that there is nothing unconstitutional about gun control.  The Second Amendment does not block efforts to restrict the sales or availability of firearms, in principle.  The individual right to keep and bear arms, like every right in the Constitution, is subject to reasonable regulation.

Bottom line, gun ownership and use is not an absolute right, not under the Constitution, and Americans have the right to limit who can own what kind of gun and where and how they can carry the ones they do own if we choose to do so.

The question is whether we will choose to do so.  I’m guessing no, to be honest.  Americans have clearly stated that the blood of children is an acceptable price for the free availability of guns, and I do not see any marking on the wall that says, “When the pile of bodies reaches this line, things will change.”  It is a sad commentary on us as a culture, but there you have it.

Watch your back.


Eric said...

Excellent, David, and thank you.

I feel obligated to muddy things a little by pointing out that the Founders' also subdivided the Many by creating a bicameral legislature in which a Few (the Many Few?) held precedence over the Many (the Many Many?). The mistrust of mob was such that you could trust the Many with the purse strings (subject to adult oversight) but little else.

Of course, with the direct election of Senators, that regime no longer exists, either.

Anyway, thank you again for this one. Great post, man.

Janiece said...

I like pie.


Thanks for a great post. I have a tendency to "forgive" the judicial activism that guarantees the individual's right to bear arms. As you note, the Constitution is something that must evolve in order to remain relevant, and if I approve of the so-called "right to privacy" inherent in the 14th Amendment guarantees a woman's right to reproductive freedom, I must support the Supreme Court's power to interpret the 2nd in ways not to my liking.

Stupid intellectual honesty.

David said...

Thanks, Eric! Thanks Janiece!

The position of the Senate in that is indeed rather murky - they were supposed to represent a different Few (as twice-filtered representatives of the states) but got lumped in with the Many anyway, and there is just something inherently spiky about the way the Senate fits into the rest of the system. It keeps things interesting. :)

Eric said...

Part of that spikiness may have to do with the rapid transformation the Supreme Court underwent. The argument would be that the Supreme Court as a Constitutional entity wasn't designed to represent anybody, but merely to settle interstate disputes; after Marbury v. Madison, however, the Court became a co-equal branch of government tasked with Constitutional arbitration. This changes the rule of the Senate, and corruption (in the criminal, non-republican sense) leads to the Senate being transformed into a democratic institution by the end of the nineteenth century by way of Constitutional amendment.

David said...

That's possible, I suppose, though I would argue instead that none of the three branches of government in the Constitution were designed to represent anybody except the Senate.

The idea of balancing a republican government by function rather than orders goes back slightly further than the 1787 Federal Constitution, to John Adams' 1780 MA Constitution. Massachusetts being a state, the question of the role of states in the central government was moot (nobody really cared about the role of counties in the state government). It's all by function.

In the Federal Constitution, the US Senate gets sort of grafted onto this structure by people who fear the states will be swallowed up by the central government and want them to have a distinct voice - it therefore never really fits well until the 17th Amendment (1913) makes it a directly elected body rather than a state-legislature-elected body. By 1913, of course, the Progressives are far more interested in democracy than in republicanism.

I would argue that the role of the Supreme Court was inherent in the design of the Constitution. Marbury simply confirmed that the other two branches were not so corrupt as to deny it.

beatrice in Paris said...

Going to your comment about militias, how would you name the armies of the South during the Civil War? It seems to me that if militias disappear by 1812, then the Confederate Army was an army, therefore legitimate. This seems to contradict another post you made about the Civil War.

David said...

There’s no contradiction, Bea.

Under the Constitution, a “well-regulated militia” is a creature of a legitimate state government. That’s who is doing the regulating, and that’s who the militia is designed to defend. That’s whose authority is properly allowed to call the citizen-soldiers of the United States into active service.

The South, however, was engaged in treason. They had rebelled against the legitimate government of the United States without due cause – anyone who tells you that secession wasn’t about slavery first and foremost is trying to sell you something rancid – and they raised an army to do so.

By definition, this army was not a well-regulated militia in the Constitutional sense. For one thing, it was not a creature of a legitimate government, state or otherwise. For another thing, it was not fighting to defend against any encroaching tyranny – they were simply fighting against a government that was doing stuff they did not like, which, as noted repeatedly, is not the same thing. And finally, they were a professional army – paid, trained and equipped with no other job to do but fight.

So yes, the Confederate army was an army and not a militia. It was an army that was fighting in defense of treason against the United States, in order to perpetuate an illegitimate self-declared usurper state whose sole reason for existence was the continuation of human slavery. They lost, and humanity is better for it.

Searching... said...

Thank you! I always enjoy understanding things in the context they were originated.

I've been thinking of how much the world has changed since the 2nd Amendment was crafted and wondering how far we had strayed from the original intent.

Today, so many argue that it is intended for individual self-defense. And even *if* that were true, the need for individual self-defense in the modern world would seem somewhat silly compared to the times in which the 2nd Amendment was written. They did not have 911 or a professionally trained police force that could respond in a timely manner, so had to rely on their own individual ability to defend their property, life, etc.