Can Washington DC Legally Stop Residents from Owning a Handgun? (Supreme Court Brief)News at Home
INTRODUCTION AND SUMMARY OF ARGUMENT
The central question is whether the Second Amendment protects a private right to keep handguns and other firearms, independent of an individual’s membership in a state-regulated militia. As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?
Historians can best assess these claims by reconstructing the context within which the adopters of the Amendment acted. Recovering that context involves more than snatching a line from Blackstone’s Commentaries or Madison’s 46th Federalist, or ringing endless changes on the references to hunting and fowling in the Dissent of the Anti-Federalist minority in the Pennsylvania ratification convention. It instead involves explaining how a popular right to keep and bear arms figured in the ratification debates of 1787-1788; how that debate was in turn shaped by the Militia Clause of Art. I, §8; and why that clause appeared to threaten key Anglo-American political ideas dating to the Glorious Revolution of 1688-1689. Setting the context for the Second Amendment also requires exploring analogous provisions in the parliamentary Bill of Rights of 1689 and the declarations of rights that accompanied the first state constitutions.
Once explored, this context establishes that the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789. Though Anglo-American political tradition did indeed value the idea of an armed populace, it never treated private ownership of firearms as an individual right. The right stated in the seminal English Bill of Rights of 1689 vested not in individuals but in Parliament, which remained free to determine “by law” which Protestant subjects could own which weapons and how they could be used. Nor did the first American constitutions and declarations of rights include clauses protecting private use of firearms.
The right to keep and bear arms became an issue in 1787-1788 only because the Constitution proposed significant changes in the governance of the militia, an institution previously regulated solely by state law. Anti-Federalists argued that Congress would abuse its proposed authority to organize, arm, and discipline the militia by allowing that venerated institution to atrophy from neglect and lack of funding. A national government that could command permanent armed forces with its own resources would gain an engine for tyranny. Republican political thinking had long regarded standing armies as a danger to liberty, and a militia of citizen soldiers as one of its greatest bulwarks. Anti-Federalists rehearsed these arguments, and several ratification conventions—notably Virginia and New York—adopted resolutions affirming that the right to keep and bear arms, when tied to service in the militia, merited constitutional protection. Nothing in the ratification debates of 1787-1788, however, indicated that the exercise of this right required limiting the customary police powers of state and local government.
Federalist supporters of the Constitution dominated the First Congress that met in the spring of 1789. In framing the Second Amendment, they simultaneously sought to assuage the expressed Anti-Federalist concern about the maintenance of the militia while preserving congressional authority over its organization, arming, and discipline. They rejected language that would have modified that authority, including a qualifying provision, proposed by the House of Representatives, defining the militia as “composed of the body of the people.” Acceptance of that definition would impair congressional authority to determine how extensive membership in the militia should be.
Nothing in this argument challenges the idea that eighteenth-century Americans had ready access to firearms, or that they valued the concept of a well-armed citizenry. Individuals were legally free to purchase and keep weapons as they could other property; but like other forms of property, the keeping of firearms was subject to extensive legal regulation. What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.
Even after the parliamentary Bill of Rights of 1689 allowed certain classes of Protestant subjects to keep arms, British constitutional doctrine and practice subjected the limited right therein recognized to extensive legal regulation and limitation.
The closest English antecedent to the American notion of a right to bear arms appears in the Bill of Rights, the parliamentary reenactment in December 1689 of the Declaration of Rights that the new monarchs, William and Mary, accepted seven months earlier after the Glorious Revolution forced James II to vacate his throne. Knowledgeable Americans were familiar with the Bill of Rights and the circumstances of its creation. Americans saw the English document as part of a common constitutional tradition, a binding pledge by the Crown to acknowledge the legal supremacy of Parliament and thereby respect the rights of the people.
That link between parliamentary supremacy and popular rights is critical to understanding the import of Article VII of the Bill of Rights, which provided “That the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.” The formal grievance that Article VII answered was that James II had violated settled law “By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Bill of Rights (1689) reprinted in 5 The Founders’ Constitution 1-2 (Philip Kurland and Ralph Lerner, eds. 1987). The authors of the Bill of Rights were reacting to the efforts of Charles II and James II to maintain Stuart rule through a standing army increasingly officered and manned by Irish Catholics. Commissioning Catholics as military officers did indeed violate the Test Act, which required officeholders to swear an oath denying Catholic doctrine on transubstantiation. In the paranoiac atmosphere of the 1680s, James’s open practice of Catholicism and the birth of his male heir made the fear of a Catholic restoration all the more ominous.
The arms-bearing right that the Bill of 1689 affirmed, then, was a response to this specific situation, tied to the belief that an armed Protestant population would safeguard the realm against a Catholic restoration. It did not establish a general right of all persons to keep weapons, and especially firearms, for purposes of individual defense. An earlier version of Article VII could be read to grant the right to all Protestants. But that expansive possibility was checked when the House of Lords added the crucial qualifying language, “Suitable to their Condition and as allowed by Law.” (Lois Schwoerer, To Hold and Bear Arms: The English Perspective 76 Chicago-Kent L Rev. 30-48 (2000). The first qualification tracked a long history of legislation making the possession of weapons, and again especially firearms, dependent on the holders’ social and economic status. The second qualification was a reference to the Game Law of 1671, which allowed lords of manors to appoint gamekeepers to “take and seize all such guns” used by “divers disorderly persons” to hunt and trap “game intended to be preserved” for the higher classes of English society. 6 English Historical Documents 466-467 (Andrew Browning, ed., 1988). Adoption of the Bill of Rights did not affect Parliament’s capacity to regulate who could or could not possess firearms. In fact, when a new Game Act was adopted in 1693, the House of Commons rejected (169-65) a proposal allowing “every Protestant to keep a musket in his House for his defence not withstanding this or any other Act.” Many members voting had sat in Parliament in 1689; they evidently did not read Article VII as establishing a broad-gauged right all Protestants could claim. Schwoerer, Hold and Bear Arms, supra at 50-51.
The notion that Article VII made ownership of firearms a fundamental right immune to substantive regulation fails for a broader reason. The lasting constitutional significance of the Bill of Rights was not only to identify certain rights of the subject that merited protection, but also to lay down the basic premises that shaped British constitutionalism thereafter: that the monarch could not make law simply by royal edict, but that he must rule lawfully, with the consent of Parliaments freely elected and frequently assembled. The concept of parliamentary supremacy, as exercised through the king-in-Parliament, was the great principle the Bill of Rights vindicated. The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula “according to law” made clear, this imposed no limit on the reach of parliamentary power.
That understanding also informed a much-cited passage from Sir William Blackstone’s Commentaries (1765). “The fifth and last auxiliary right of the subject . . . is that of having arms for their defence, suitable to their condition, and such as are allowed by law,” Blackstone wrote, citing the Bill of Rights. This was “indeed, a publick allowance under due restraints, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 William Blackstone, Commentaries *139. Notwithstanding the reference to “self-preservation,” this passage cannot be construed to assert an unregulated private right of self-defense, for two reasons. First, Blackstone’s corpus of five “subordinate” or “auxiliary” rights involve the subject’s relation to public authority, respectively through the constitution of Parliament; the limitation on royal prerogative; access to courts of justice; the right to petition; and finally, the right to arms as a security against oppression. Id. at *136-139. Second, the phrases “suitable to their condition, and such as are allowed by law,” and “under due restraints” denote the regime of parliamentary regulation that the Bill of Rights made the fundamental principle of British constitutionalism. Blackstone was an unequivocal defender of that regime. “So long therefore as the English constitution lasts,” Blackstone wrote in the very next chapter, “we may venture to affirm, that the power of parliament is absolute and without control.” Id. at 157. Whatever principle the Bill of Rights stated always lay within the power of Parliament to apply and regulate, and thus to modify or limit. In this sense, the Bill of Rights did not establish a catalogue of rights in the modern, positivist, constitutionally-entrenched sense of the term. Like the clauses of Magna Carta, all of its provisions were subject to modification, control, and repeal by subsequent Parliaments. So long as Parliament sat, Blackstone envisioned no situation under which the auxiliary right of resistance could be invoked. ...
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Andrew D. Todd - 2/1/2008
One unavoidable fact to be faced is that the constitution is not an exemplary piece of legal draftsmanship, and the bill of rights, being prepared in comparative haste, is one of the worst-drafted parts. It is prone to the lazy writing habit of using ten ambiguous words, rather than a hundred precise words. One might compare the Bill of Rights with the Universal Declaration of Human Rights. They cover the same essential ground, but the latter was written with the prior knowledge that the ghost of Heinrich Himmler proposed to drive a truck through it. The American courts have gradually manufactured unambiguity for the Constitution, just as the English courts had gradually manufactured unambiguity for Magna Carta.However, given the way that Magna Carta had taken on a life of its own, quite apart any possible intentions of King John (+), the framers must have been more than usually naive if they did not know that they were giving the Supreme Court a charter for activist interpretation. What the framers did do was to provide a procedure for amending the Constitution. They also allowed the difficult problem of slavery and the slave trade twenty years to resolve itself. These reflects their ultimate intention-- that serious social and political problems, those which do not simply go away in twenty years, should be resolved by crafting a new compromise which is sufficiently widely accepted (by nearly everyone) that it can secure an extreme supermajority.
(+) Can anyone tell me, with any show of likelihood, what King John would have thought of William Penn's trial for illegal preaching in Gracechurch street, and of the further confrontation with the judge over "hat courtesy?" Quakers consistently drove government officials up the wall by saying "thee" and "thou" in socially inappropriate contexts.
Article I, Section 2 specifies that "the people" shall elect members of the house of representatives, and that the voter qualifications shall be the same as for the corresponding house of the state legislature ("the most numerous"). Here's where we jump the shark, however. The Framers did not believe in universal suffrage, or universal manhood suffrage, or universal white manhood suffrage. They believed in suffrage by freeholding, that is, by owning sufficient property to own one's own means of production. The English standard for freeholding was forty shillings annually. The various equivalent figures cited Charles Beard in _Economic Origins of the Constitution_ would presumably be in various kinds of colonial funny money. Notably in the southern states, a freehold was defined as a certain number of acres, anywhere from twenty-five to fifty, which would be enough to maintain a household in a state of economic self-sufficiency. It did not matter what the market value of this land was.
In the time of the Framers, Philadelphia was the largest city in North America, with something like 50,000 people. Mexico City was the largest city in the Western Hemisphere. London, with more than a million people, was the largest city in Western Civilization. Most of the really big cities, however, were either in the Far East, or India, or the Middle East. From the point of view of the framers, London, and Edinburgh, Scotland, were problematic exceptions to the general rule that large cities were part of the baggage of oriental despotism. Now, 50,000 people is, by our standards, a town. My working definition of a town is that one can, from the center of town, easily get out into the country, whereas in a city, the time and distance become prohibitive. A city implodes. American cities, such as they were, were not so dense as to prevent common people from keeping livestock, planting vegetable gardens, or building their own shacks to live in. This sort of thing did not constitute a freehold, but it did create, at minimum, a common sentiment opposed to chicken-stealing or hog-rustling. I suppose one might describe this as "Freeholding Lite," in contrast to the attic-dwelling apprentices in Robert Darnton's _Great Cat Massacre_. At the same time, a town of 50,000 is small enough that there is little anonymity. This does not mean that everyone knows everyone, but it does mean that people tend to come up against those people in cognate lines of work, over and over again. For example, the local police and the local criminals- say one percent of the relevant age group in each case, or fifty to a hundred individuals- will be more or less on a first-name basis. The framers did not think they were legislating for the City of London. They simply did not think very much about what would happen when tens of thousands of people differing only marginally in condition from slaves were gathered together in close quarters. When you start to assume that the Framers were legislating for the District of Columbia in the year 2008, you run into a similar fallacy.
The world of the framers was very quiet by our standards, due to the near-complete absence of mechanical noise (no engines, no motors). A gunshot would, in and of itself, have functioned as an alarm, and would have attracted a crowd in short order, some of them mounted. The "hue and cry" was considered the standard law-enforcement technique of the time. A firearm was only useful for criminal purpose in conjunction with a fast horse, which is to say that it would be a monopoly of the upscale highwayman (Dick Turpin, Claude DuVal, etc.), rather than the common criminal. The highwayman was, broadly speaking, what Eric Hobsbawm would call a "social bandit," a Robin Hood figure. About ninety-five percent of the English population would have had nothing portable which a highwayman would consider worth stealing. It is interesting to look at Hogarth's contemporary engravings (circa. 1730-1760) as evidence of normal expectations. The common criminal's weapons of choice seem to have been knives, blackjacks, clubs, etc. Thieves are shown gloating over booty in the shape of pocket watches and jewelry, that is, conspicuously upper-class accessories. Street and tavern brawls seem to have been conducted with these, as well as canes and swords in the hands of those who fancied themselves gentlemen. The "blunderbuss" the ancestral sawed-off shotgun, was not viewed as a criminal weapon, but as a weapon of last resort against an armed gang. It was the weapon of choice for the stagecoach driver to defend his coach against gangs of mounted highwaymen, but Hogarth also shows it being used to defend a tax office against a mob which is breaking down the doors. In one engraving, the third plate of Hogarth's "Stages of Cruelty," the character "Tom Nero," in the climax of a career of sadistic crime, is apprehended in the act of murdering his girlfriend, having first enticed her to elope with him, stealing the household silver (she is a maidservant). Nero is carrying a pistol (signifying that he is a highwayman), but he uses a knife to carve her up, and is then captured by a group of farmers bearing a mixture of muskets and pitchforks. In military engagements of the time, firearms were only decisive in well-defined conditions, broadly speaking, those where cannon were effective (*). Otherwise cold steel, that is, the bayonet, became dominant. Alternatively, there was the hatchet, cited in Rodgers' Rangers' famous fighting instructions ("Let the enemy come till he's almost close enough to touch. Then let him have it and jump out and finish him up with your hatchet."(**)). Muskets were simply too inaccurate, and took too long to reload. If you try to import your own modern ideas about modern firearms back to the eighteenth century, you may come to the mistaken belief that the framers were much more comfortable with armed self-help than is in fact the case.
(*) If you look at the characteristic American "firepower battles," that is, Lexington-and-Concord and Bunker Hill, you find that forty years later, with the same technological base, in Spain and at Waterloo, Wellington did much the same thing with "horse artillery." Horse artillery had about thirty horses for each cannon and its paraphernalia, so the load only worked out to a couple of hundred pounds per horse. Horse artillery could therefore travel at horse speeds, and run rings around infantry. Their mobility meant that they could often get into a suitable position to use solid shot effectively against infantry, and could therefore open up at a range of a thousand yards. Horse artillerymen were a small military elite, rather like tank crews. Henry Knox could easily have found the requisite horses, and if he had been a bit more imaginative, the British might have had to evacuate Boston after Bunker Hill.
(**) Ian Padden, _The Fighting Elite: U. S. Rangers_, 1985, p. 20, pbk.ed.
It is worth looking at the major writings of Richard Maxwell Brown (former Beekman Professor of Northwest and Pacific History at the University of Oregon), viz: _Strain of Violence: Historical Studies of American Violence and Vigilantism_ (1975) and _No Duty to Retreat_ (1991). Brown does not deal with the right to bear arms per se, but he deals with a closely related point, the circumstances of justifiable homicide. If you bear arms, you are sooner or later going to use them. Brown stresses the extent to which the "activist" definition of justifiable homicide was a nineteenth century invention. Before then, the standards of justifiable homicide required that the killer first make all feasible efforts to retreat or escape, and only kill as a last resort. Practically, if you are not prepared to use your gun for self-defense, then you might as well put your money into other measures, such as better locks, alarms, etc., so the question of justifiable homicide merges in practice with that of right to bear arms.
Lawrence Brooks Hughes - 1/31/2008
Until this season there hasn't been any debate on it in the Supreme Court for decades. But, something over 40 states have reversed their prohibitions on concealed handguns fairly recently, and in each case there has followed a reduction in gun crimes. So now it seems the Supreme Court decided to make it unanimous by agreeing to hear the D.C. case. Yes, you're right, this cause never fails to bring out many who try to defend the suppression of the 2nd Amerndment. But if the Supremes rule for Mr. Madison this time, as seems likely, and gun crimes decline as a consequence, you probably won't hear another peep out of them.
John R. Maass - 1/30/2008
The very fact that there has been so much debate about the bearing arms provision of the 2nd Amendment refutes the assertion that it "is so explicit and in such clear English."
Lawrence Brooks Hughes - 1/29/2008
I don't see how you can call something like the Brady act a law which does not "infringe" on the ownership of guns. Or for that matter, the Sullivan law, and others. So, the 2nd Amendment HAS been bent out of shape for at least 65 years, i.e., the people's right to keep and bear arms has not been protected--everywhere--for that long. The Supreme Court, with a majority wishing to violate the Constitution throughout those 60 years, has simply refused to hear cases involving the question, probably because they knew they couldn't get around the words,"of the people," and so decided it would be more prudent not to try.
Beyond that, I think everyone must concede a leading role to the Constitution in making us the most successful, powerful and free country on earth. It should not be surprising that most of our citizens appreciate the Constitution's part in this, and thus will reject casual attempts to amend it, especially when, by accident or design, attempts to amend are so sophisticated their effects are unclear, or too far-reaching for anyone to know what their potential effects are(as, say, in a proposal to repeal the Electoral College). The Founders made it very difficult to amend the Constitution, and the success of the United States without many Amendments has made it that much harder. The people know that what we have today is good enough to keep themselves happy, and to inspire millions of others to crash our borders illegally every year--which occurs to no other nation in the world. Accordingly, advocates of a "living" or changing Constitution must do it by appointing supreme court justices who will interpret it loosely. We just had, for instance, Mrs. Justice O'Connor's ukase that "affirmative action" should be extended for another 25 years." She was sharply repudiated by the voters of Michigan in 2006, and will be repudiated again by voters in three or four other states this year... Those who want the Constitution to "evolve" into something it isn't have their work cut out for them. The public has a strong prejudice against changing any part of it, for good reason, and to do so will require a very hard sell.
The bearing arms provision of the 2nd Amendment is so explicit and in such clear English that it is very doubtful it can ever be changed, even by stealth. It is also timeless, as modern dictators always collect their people's guns as a first act upon coming to power, just as tyrants did 200 years ago.
John R. Maass - 1/29/2008
I followed the link to Clayton Cramer's blog and his dispute with the 15 historians who filed the DC case brief.
It should be obvious from Cramer's own post however that the historians in their brief do not claim themselves to be experts on "guns in early America," rather, they claim themselves to "specialize in the American Revolution, the Early Republic, American Legal History, American Constitutional History, Anglo-American Legal History, or related areas."
John R. Maass - 1/29/2008
With all due respect to these historians, several of whom I know personally and admire quite a bit, it seems to me that so many writers/historians are very quick to conclude that the U.S. Constitution is a "living" document that should be flexible and has "grown" over time. Along these lines we have seen several (many?) parts of the Constitution become distorted over the years, esp. the 10th Amendment. Yet the one part of the Constitution that for some reason never bends or changes and remains static is the 2nd Amendment. It appears that current politics, going back to the 1960s perhaps, prevents many critics of private gun ownership from giving the 2nd Amendment the same latitude (if you will) as the rest of the "emerging" document.
This comment is an observation, and not a barb or uncivil cut at anyone, especially the 15 historians. I too am an historian of the colonial and revolutionary period and have a great familiarity with firearms in history to the present day, and make my comment with respect, rather than as a polemical statement.
Lawrence Brooks Hughes - 1/29/2008
It doesn't say "the right of the states etc.," or "the right of the militias etc.," it says "the right OF THE PEOPLE to keep and bear arms shall not be infringed. The die-hards cannot get past those three little words "of the people," and are foiled by the Founders. It should be noted, of course, that this right was not new in 1789, as is evident from the phrase "shall not be infringed," but one which the colonial people had generally enjoyed for nearly 200 years... I have read that the original draft of the 2nd Amendment, by Mr. Madison, began with the ringing sentence, "The right of the people to keep and bear arms shall not be infringed," and that the preamble was just added by a stupid committee of Congress trying to justify its existence. It helps that we have today a large body of evidence which indicates persons and property are much safer in jurisdictions where laws which infringe on gun ownership do not exist. (See "More guns, less crime," by John Lott, of U. of Chicago). In recent years new laws have been passed by state after state to enable concealed handguns after legislatures have looked at the persuasive contemporary crime statistics. There really are not two sides to this question. In addition, of course, nearly all provisions of the Bill of Rights concern personal rights, such as trial by jury, cruel punishments, unreasonable searches and seizures, speedy trials, freedom of speech, etc., rather than rights guaranteed to the states.
David W Lawson - 1/28/2008
The second amendment places two restrictions on the Federal government.
One perpetuates the militia, the other recognizes the right of the people to keep and bear arms.
You can't argue that the right to keep and bear is dead because the militia is not needed. The militia is mandated by the constitution. You might as well argue that the Second is dead because we don't live in a "free State."
Jonathan Dresner - 1/28/2008
Only if it's got a similarly historical line of argument.
Benjamin Jones - 1/28/2008
The U.S. Court of Appeals for the District of Columbia's decision and dissent can be found here:
William J. Stepp - 1/28/2008
Before the Second Amendment, there were these things called natural rights. They guaranteed the right of people to own their bodies (self-ownership) and to own their justly acquired property without a fare-thee-well from the King.
So the Second Amendment goes, and natural rights stay. The Libertarian Kid stays in the picture; the King (or Parliament/Congress) can drop dead.
John H. Lederer - 1/28/2008
A legal brief is necessarily a one sided document. Wouldn't it be appropriate to also put up the opposing brief(s)?
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