Who's On Second?
September 24, 2010
In a speech at UCLA, the author lays down the law.
I was involved in the 2007 Heller case in which the Supreme Court invalidated Washington, D.C.'s gun bans as contrary to the Second Amendment right to arms. I was recently invited by UCLA's law school asked me to address the subject recently. Here's what I told them:
'The historical evidence is clear: The Second Amendment was uniformly seen as an individual right by 18th and 19th century Americans. The idea that it was something else is a fiction of the 20th century, invented because even gun-ban advocates realized that the amendment has to mean something.
The most currently popular inventions are the 'collective rights' view and the new 'sophisticated collective rights' view. The former claims the right to arms belongs to everyone 'collectively' so that no one individual has or can assert it.
A right that everyone has so no one has it? This is not a theory. This is gibberish guised as a theory. It bears emphasis that no collective right advocate has ever bothered explaining what their interpretation of the amendment means or why Congress would write a meaningless 'right' into the Constitution. They have no interest in explaining this gibberish for it was invented just to provide some explanation of the amendment other than an individual right to arms.
Contrast this 'collective right' gibberish to the 'collective' rights that our Constitution actually does guarantee: The First Amendment protects a 'right of the people' to associate, and for groups to assemble collectively and petition government. That means that any member of a group denied those collective rights may vindicate them by litigating for himself and the group.
Likewise, the 15th and 19th amendments prohibit discrimination against voters because of their race, color or sex. That means that any person denied the right to vote because of membership in a group defined by race, color or sex may sue to vindicate her own right and those of the other group members. The 'collective right' view of the Second Amendment is an oxymoron which clashes with the way every other collective right works.
The 'sophisticated collective right' theory is even worse. It posits a right to arms that can only be exercised 'in the context of' militia or military service. Since its proponents have not adduced even one example of what that means, let me suggest some. Imagine a good old boy from down South enlists. He started hunting when he was eight and by 18 is a superb marksman. So the Army makes him a cook and gives him a stove instead of a rifle. If he has a right to arms 'in the context of military service,' does that mean he can sue the army and a court will order the military to give him a rifle and reassign him as an infantryman? Of course it doesn't!
Under current military practice, soldiers serve unarmed. On base they don't have either their own arms or military arms. When committed to a combat zone, they are issued particular weapons which the Army deems suitable to duties it assigns them. Soldiers do not get to possess personal arms. Any soldier fool enough to demand his 'right to arms in the context of military service' would end his military career in the stockade.
For instance, to the dismay of experienced shooters, the arms the military issues today are far less powerful than those soldiers had 60 years ago when General Patton declared the M1 rifle the finest instrument of war ever devised for infantry. Does anyone here think there is a 'right to arms in the context of military service' so soldiers can demand the Army issue them old M1s rather than puny new M16s? (Incidentally, when the CIA hires mercenaries it gives them M16s; but as soon as they kill an insurgent they pick up his AK47 and throw away the M16.)
If it does not mean any of these things, what does it mean to call the Second Amendment a right to arms that can (only) be exercised 'in the context of' militia or military service? And why do these queries have to be raised by an opponent of the collective right theories? Why have the theories' proponents not detailed what those theories mean? Those theories are just gibberish frantically dreamed up to invent some meaning for the Second Amendment other than what it means.
An older anti-gun invention claims the amendment was intended to restore state control over the militias. This is not gibberish. It is an intelligible theory. But it is clearly wrong. Here are some of the major historical problems:
1) The amendment uses the phrase 'right of the people,' which everywhere else in the Constitution denotes individual rights; the amendment does not use words like 'powers' or 'authority' which is how government powers are described everywhere else throughout the Constitution;
2) The Second Amendment was not the product of some devotee of states' rights and powers vis-Ã -vis the federal government. It was authored by James Madison who was so extreme an advocate of federal power vis-Ã -vis the states that he deemed the Constitutional Convention a failure because it rejected his proposal for a federal veto power over all state legislation.
3) Madison and his mentor Jefferson did not see the federal powers in the original Constitution as excessive vis-Ã -vis the states; if anything needed correction, they believed, it was the lack of a set of guarantees for personal rights, not a lack of guarantees for states' rights;
4) Madison expressly told Congress that his Bill of Rights guaranteed personal rights to individuals and had nothing to do with state powers;
5) Far from thinking the Second Amendment would meet their desires, the Anti-Federalists (the advocates of restoring state powers over the militia) in the First Congress sought to accomplish it by separate proposed constitutional amendments--which were defeated by the Federalist-majority Senate;
6) Neither in Congress nor the state legislatures was there either any objection to an individual right clause or any suggestion that it would restore state power over the militia; the only objections made were to the militia clause on the ground that it did not do anything;
7) The amendment follows early state constitutional rights provisions in having a prefatory clause (the militia clause) preceding the rights declaration; the principle of construction then as now was that the prefatory clause cannot narrow or nullify the declared right; and
8) Far from the Second Amendment preserving state powers over the militia, from the earliest time the Supreme Court has consistently held federal authority over the militia to be plenary with state authority limited to matters as to which the federal government has not spoken.
Since 1980 almost 200 law review articles have discussed the Second Amendment. Upwards of 175 of those 200 endorse the individual right to arms. The authors include leading scholars. While some are conservatives like Eugene Volokh, they also include outstanding liberals like Bill Van Alstyne, Leonard Levy, Sandy Levinson, Scot Powe and Alan Derschowitz.
In sum, the overwhelming majority of legal scholars who have researched the matter conclude that there is a right to arms--even though many of them wish there were not."