Fun Constitutional Facts: Gun Rights Edition

The words “regulate” and “regulated” appear three times in the Constitution’s current text. Here they are:

Article I, Section 8:

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…[and] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.”

Other than those two, it’s just guns. “Regulated” appears just once in the Bill of Rights—in the Second Amendment:

“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.”

Huh.


Conor Williams on Twitter and Facebook. Here’s his background and his email

Please do be so kind as to share this post.
Share

94 thoughts on “Fun Constitutional Facts: Gun Rights Edition

    • In sobriety, I’d agree that “shall not be infringed” means about the same thing as similar words in the First Amendment do, which allows for all kinds of laws and rulemaking and such, while still preserving in a meaningful and actual way speech, religion, and petition rights.

      Report

    • Burt, in The Founders’ Day?, there would be no militia without those guns at home.

      Because we didn’t have armories of weapons for a standing army. In fact, the very first battles in the Revolutionary War were over access and control of the British Army’s armories. The second is followed closely by the third, also having to do with national security and the citizens’ rights in a crisis — the right to to house a soldier, for instance. Given those oddities, taking the second out of its context is troublesome, indeed.

      So another very real reading of the 2nd is that we shouldn’t infringe our ability to national security, that we should have an armed and trained militia on the ready, and in context with the 3rd, we should house that military without forcing it on the citizenry.

      Report

      • Also in the Founders’ era, there was no such thing as a standing army. The presence of a standing army within the boundaries of a country at peace was thought an intolerable risk to liberty and peace. The Founders literally fought a war about that.

        I live within about an hour’s drive of an active-duty military base that’s absolutely crawling with young men and women on active military duty, all of whom have immediate access to literal arsenals of deadly guns. That statement is true for a large number, if not a majority, of all of our readers in the U.S.A. In my case, those active duty military personnel also have hands-on access to cutting-edge air superiority vehicles, both manned and unmaned, nuclear weapons, and a variety of tactical systems with which to deliver them.

        Strangely, though, I don’t feel like any of this is a particular threat to my liberty.

        We aren’t living in the Founders’ era.

        Report

        • Burt,

          “Strangely, though, I don’t feel like any of this is a particular threat to my liberty.”

          The fear of a standing army was partially that King George or his nonunion American equivalent would use the army to come and kill you or seize your property. But it was also about something else:

          that having a standing army would give an incentive to the executive to use it abroad, that such use would create a financial obligation upon the country, that the legislative branch would then be in a position of having to honor that obligation, that to honor the obligation would mean establishing a funded debt, that establishing a funded debt would mean imposing taxes to fund that debt, and such taxes, being necessary to fund a debt incurred by an executive’s use of his or her standing army was essentially taxation without representation and therefore you know what.

          Now, I’m not one to try to justify some colonists’ decision to kill people because they didn’t want to pay a luxury tax. In fact, I’m on record as believing that that whole unpleasantness did not amount to a just war (although it eventually (eventually!) led to good things, like the end of slavery). But I think they had a point on this one, and I do feel less safe, at least on the margin, because of the standing army.

          Report

  1. Here’s a question:

    Is it possible that the 2nd amendment is just incorrect? Personally, living in a secure free state without a regulated militia, I would argue it is.

    Another insightful question:

    If I were to make a convincing argument that the right to keep and bear arms is imaginary (which is the sort of thing I’m good at, as we all agree), then is it even possible to infringe upon it?

    Report

    • Also is a militia logically necessary for the existence of a free state? Really? That is to say, is there no possible world where a free state exists without a militia? There is no way to even imagine a scenario where a free state exists without a militia? Can’t I imagine a world with small state s, maybe 10 people in each, where eveyone is nice to each other, there is no war between the states, and neither has a militia? It is a logical truth that we need a militia to be free?

      And can’t I at least imagine a possible world where a free state has a poorly regulated militia? Maybe the militia is poorly regulated but by mere accident they act effectively to keep the peace. Isn’t that a conceptual possibility?

      I conclude that the Constitution contains at least one false claim (even apart from the really morally awful stuff) about what is and isn’t possible, and therefore the framers were human and fallible.

      Report

  2. It’s worth listening the the NPR broadcast of Backstory: Guns in America.

    The founding father’s envisioned a militia instead of a standing army; in part, because they were cheapskates. And this didn’t work out to well; folks would show up to drill with all sorts of arms that didn’t function, or they couldn’t use. So the created local armories; but they forgot to amend the 2nd. With the Civil War, gun manufacture went industrial and mainstream, the country was washed in weaponry. And we still forgot to amend the 2nd.

    But the part of this broadcast that really jumps out is our wild west views — the shoot out at the OK Corral was front page news because it was unusual. You didn’t bring your guns into town, that was regulated by local custom. And gun control really skipped public notice until the Civil Rights movement, when some activists asserted their right to bear arms; then, when we were looking at the face of armed Black Panthers, and not just peaceful marches, gun control looked mighty appealing.

    It still does. Because the notion that you need a gun to protect yourself is mostly an indication of cowardice and inability to comprehend statistics.

    Report

    • gun control really skipped public notice until the Civil Rights movement, when some activists asserted their right to bear arms; then, when we were looking at the face of armed Black Panthers, and not just peaceful marches, gun control looked mighty appealing.

      Because scary black people…

      It’s a fear that goes back further though. There were towns in the south that had gun bans that specifically applied only to blacks.

      Report

    • >>> So the created local armories; but they forgot to amend the 2nd. With the Civil War, gun manufacture went industrial and mainstream, the country was washed in weaponry. And we still forgot to amend the 2nd.

      So, our Founding Fathers and all of our politicians during the Civil War hailed from the state of Mississippi? Who knew?

      Report

    • The founding father’s envisioned a militia instead of a standing army;

      Well, in addition to a small standing army. I find the whole Whiskey Rebellion story kind of fascinating. The standing army, supplemented by state militias, was off in Ohio trying to deal with the Indians. In western Pennsylvania, the protests over the whiskey tax reached the status of armed rebellion, but the leaders took great pains to assert that this was actually the local militia defending against the overreach of the government (with the militia part to emphasize that they were indeed “well regulated” as the Second Amendment required, and not simply a mob). And back on the coast, Washington used the authority provided by Congress to call up the state militias from four states to send to western Pennsylvania to impose order and enforce the law. At least a couple of the western leaders were found guilty of treason, although Washington pardoned them.

      Certainly there seems to be a lack of evidence from the early days of the country of a right to bear arms to protect yourself from the government. Or perhaps more accurately, the right may or may not exist but it doesn’t appear that anyone has successfully exercised it.

      Report

  3. Is there a societal consensus that we should pass some serious gun laws that seriously address gun crime? I’m under the impression that the numbers don’t bear this out…

    It seems to me that we’re talking about a law that wouldn’t have popular support at the same time that it’d be of questionable Constitutionality.

    I mean, we’re not even arguing about something that most people support but isn’t Constitutional. We’re arguing about something that most people don’t support *AND* isn’t Constitutional. (Or, to use the previous phrasing, “of questionable Constitutionality”.)

    I am a big fan of arguing that we should do stuff on General Principle but attacking liberal (hee hee) gun policies by beginning with parsing the Constitution to allow a law that wouldn’t have popular support in the first place seems to me to be starting in the wrong place.

    Report

      • It depends on whether the NRA gets to vote for it’s members or they get to vote for themselves.

        Strangely, there are a number of suggestions that NRA members are quite positive about and that poll very high, but the NRA leadership is heavily against.

        I think that tends to skew perceptions on how ‘popular’ or ‘unpopular’ a given measure is.

        Report

  4. Slightly off topic, but on Frontline’s two-part special on Adam Lanza, they mentioned that during the shooting he kept changing magazines long before they were emptied, just like he was playing a video game (like Call of Duty) where the PC tells you to reload when you’re magazine is only half empty. He left a trail of partially-expended magazines through the school.

    Obviously smaller magazine capacities would’ve done little or nothing to reduce the casaulties he inflicted because he was operating like he had a much smaller magazine capacity than he actually did, and more frequent reloadings were something he didn’t have any problem with.

    Report

    • My firearms experience is limited, but here’s this: When I initially qualified with the M-16, one of the things I learned/was taught was that only firing 19 rounds out of a 20-round clip allowed me to simply eject a magazine and insert another without having to pull the charging handle, whereas emptying a magazine required that extra action. At least with the M-16, dumping your magazine a few rounds early allowed for faster reload times.

      Report

  5. At the time, “well regulated”regarding troops essentially meant “properly disciplined or trained”.

    We should look at words and phrases based on the meaning of the words at the time. If the constitution were to say something about needing a gay populace, we should probably assume they mean a happy one rather than pogroms for heterosexuals.

    Report

  6. You can’t legislate the problem of gun culture away.

    For one, there are too many guns. You can’t put that genie back in the bottle.

    For another, any law with teeth will simply encourage massive civil disobedience and flouting of the law. Americans love their guns, even the ones who are otherwise law-abiding.

    Report

    • Americans love their guns more than they love preventing thousands of preventable deaths (that are prevented in other places)?

      An epistemically weaker question: Americans love their guns more than they love taking the best shot that they can at stoping thousands of preventable deaths (that don’t occur in other places)?

      Americans did not love big heavy, beautifully-shaped cars more than they loved the chance at preventing preventable auto-accident deaths by requiring cars to be lighter and safer (and frankly, uglier) via regulations (that also worked in other countries).

      Maybe they will turn on gun ownership (or gun ownership as it is) in the way that they have been turning on gas-guzzling cars, less safe cars, cigarretes, etc.

      Maybe, maybe not.

      Report

        • I’m not so sure about this. I mean you’re sort of right.

          If Smith really believes the hand gun he owns is more likely to be used by him, his wife, his daughter, or an intruder in a way that kills his wife or her daughter (via suicide, accident, or passion leading to a domestic murder) would Smith still own a gun?

          IMO, most Americans who love guns do so because they believe that they are keeping their family (or themselves) safe. (And those who love guns for recreation, almost always love keeping their families safe, such that if they believed the gun they loved for sport shooting was somewhat likely to kill their son, they would sell it.)

          Personally, I suspect people believe their gun is good for their family, even when this isn’t true in general or ever or for most of the people who believe it. (This is why gun research and advisories for public safety and health organizations based on that data is so important. If the AMA and CDC had the data to say “Owning a gun, even if you think you’re doing it right, is putting you, your family and friends at greater risk of death, unless you are in very special, well-defined circumstances (maybe you are getting active death threats) and owning a gun is like not wearing a seat belt” then maybe we’d see some change.

          Simply put: People love guns because they love keeping their family safe. The only question is whether it is true that your gun keeps your family safer.

          Report

          • A public awareness campaign will be needed to remind people that they are also at risk even when they are confident in their own ability to keep themselves from risk, analogous to drunk driving campaigns. I can’t tell you how many people I remember telling me, “I am good at holding my booze and good at driving, so I am safe to drink and drive.” or “I am not likely to get in a head on accident because I am a good driver, but I might need to escape the vehicle quickly, so I am safer NOT wearing a seatbelt.” Or even, “In my family, the smokers don’t get sick, so I am not at risk of lung cancer, so I can smoke safely, as long as I keep it under control.”

            Compare all of that to, “I can own a gun safely that will make me safer overall, because I am smart and not likely to become suicidal. And I would see if my kids or wife were becoming suicidal to keep them from the gun. And I would never kill someone accidentally because I am calm and careful.”

            Report

            • Shaz, I expect that the sort of people who believe that strongly in their own self-protection are also generally the sort of folk who are least swayed by statistical analysis and most swayed by anecdote.

              Because part and parcel with the “I’m ready to defend myself” belief is, “those people weren’t”. I’m a safe gun owner, many of those people aren’t. I’m responsible.

              This is not a belief system that is tied to intelligence level, mind you. If anything, a little bit extra IQ gives you a lot more belief in your competency.

              Report

              • True, but people who thought they were good drunk drivers or healthy enough to smoke safely weren’t so empirically minded either, and after a couple of decades, reality has seeped in. More or less.

                BTW, sorry I left off on our dispute about whether there is evidence for causal connection between firearm ownership. One day I went to the library to search for articles and my wife asked what I was doing, and I said that I was going to spend an hour or two researching data to make an argument on the internet with a stranger, and she wouldn’t let me.

                Anyway, I think your skepticism about the data is more warranted than I let on, but what evidence there is points toward the causal connection, but you were right that majority think the evidence is a bit weak, while a reasonably large minority think the evidence is stronger than the paper you cited. (The dispute seems to be between the Public Safety researchers who think the evidence is strong enough to start telling people to stop owning guns and the more hard-core epidemiological types who are more skeptical and want more data.) At least everyone agrees that there needs to be more data, and that politicians need to get onside with data collection, including basic things like how many households own guns, of which we have only very vague estimates.

                Report

                • I have absolutely no argument with the idea that we need better data. Our measurement is poor.

                  Now, that doesn’t mean that I’m against the principle that encouraging lower levels of gun ownership is a good idea; and encouraging higher levels of gun competency among those who own guns and want to keep them is likewise a good idea.

                  Report

                  • Now, that doesn’t mean that I’m against the principle that encouraging lower levels of gun ownership is a good idea; and encouraging higher levels of gun competency among those who own guns and want to keep them is likewise a good idea.

                    This sounds good. But to my mind, and this is where data would be useful, it what I’ve come to think of as panic ownership and hoarding; the rush to purchase every time there’s an event that’s perceived to limit, by the same handful of customers. Because most of the gun owners I know own a gun, maybe two, for deer season. Which leads me to believe that there are folk out there with arsenals to make up the difference, because if the numbers are to be believed, 21% of the people own enough guns to arm 100%.

                    It seems like addictive behavior. Or there’s a lot of funneling weapons into the wrong hands we don’t know about. (.5 million stollen every year; are they really stollen?)

                    Report

                  • There is no greater proof that we already have good data than that the NRA have been lobbying to prevent collecting more data.

                    The data shows that guns are dangerous and that you’re more likely to see yourself injured, or a family member injured, by your own gun than to use it to successfully “defend yourself.” That data is in the NRA’s hands right now.

                    The NRA is the equivalent of the tobacco industry a few decades ago, deliberately hiding the research and pushing false data (like the other myths they keep peddling) for their agenda as representatives of the gunmakers’ lobby.

                    Report

                    • There is no greater proof that we already have good data than that the NRA have been lobbying to prevent collecting more data.

                      I think actually seeing the data would be a greater proof.

                      Report

                • “One day I went to the library to search for articles and my wife asked what I was doing, and I said that I was going to spend an hour or two researching data to make an argument on the internet with a stranger, and she wouldn’t let me.”

                  I laughed out loud when I read this.

                  Report

                • ” I said that I was going to spend an hour or two researching data to make an argument on the internet with a stranger, and she wouldn’t let me.”

                  Isn’t that grounds for divorce? LOL

                  Report

            • Of course, the vast majority of people are correct about this. As evidenced by the fact that the vast majority people never shoot themselves or their family members. It’s not as though people are deluded en masse, the way they are with respect to their ability to vote in a way that won’t harm themselves or others.

              Report

              • Well, yeah, but by analogy, the vast majority of people back in the day were right about drunk driving being safe for them, too. Only a select few died. People were not deluded en masse about drinking and driving. (Lots of people back in the day drove drunk regularly -everyone I knew growing up, BTW- and en masse they survived.)

                The problem is that most everyone believes with certainty that “I am doing it (smoking, drunk driving, owning a gun) safely even if others are at risk” and everyone believes they are justified. But even if a few people are correct that they are not at risk there is literally no way for them to know that their belief is justified. Thus, no one should hold the belief “I am safe while others are at risk.”

                Report

      • It’s not like we’ve never /had/ guns in this country. Oddly, I can recall when there were high school shooting teams, who competed against OTHER high school shooting teams. They’d bring their 22 long rifles to school, slung over their shoulders. My friend rode the subways of New York carrying his gun to school and to meets. Oddly everyone managed not to have massive shootouts. These guys are obviously deranged killers in the making

        Report

      • Just to follow up, I guess the data is strong enough that the American Academy of Pediatrics did recommend that parents not own guns.

        There is a 2011 meta-review limked to here as well,

        http://www.minnpost.com/second-opinion/2012/12/health-risk-having-gun-home

        The second amendment might not be beatable. We might need a public health awareness campaign to reduce gun violence, funded by the government, just telling people the truth like we did with drunk driving and cigarretes, that you personally and your family are at risk, no matter how confident and smart you think you are.

        Report

        • The second amendment might not be beatable.

          The “right to bear arms” part is unbeatable, I think. The “shall not be infringed” part is, tho, as well as various interpretations of the amendment – some of which are more plausible than others.

          Report

    • “…any law with teeth will simply encourage massive civil disobedience and flouting of the law.”
      Maybe-
      But I wonder how many people are willing to risk fines or jail time to protect their guns.

      If history is any guide, bravado vanishes pretty easily.

      Report

      • But I wonder how many people are willing to risk fines or jail time to protect their guns.

        Individually and in isolation I think you’re right that the number would be small. As an act of organized civil disobedience on a large scale, I think you’d see lots and lots of people willing to risk fines and jail time.

        Report

        • As long as the law doesn’t actually remove possession of the guns from the owners, I suspect you’ll find nearly 100% compliance with the black letter of the law. They won’t necessarilylike it, and they’ll work very, very hard to find the loopholes in the black letter of the law. But we’re talking about mostly law-abiding people here.

          Report

        • Heck, entire states are saying they won’t comply with any such law (registration, assault rifle and magazine bans), as are law enforcement officers. That gives flouting the law social sanction, and gun owners would be proud to completely ignore it.

          Yesterday I heard Kentucky just put forth a bill declaring any new firearm limits null and void and it was approved for a floor vote by the senate committee with only one nay vote.

          Report

          • After a few Colorado county sheriffs had made public statements that they wouldn’t enforce any gun laws that they themselves believed were unconstitutional, the Republican Attorney General here held a press conference and simply announced, “Sheriffs don’t get to make that decision.” With sort of a veiled threat in there to the effect of, “If you put me in the position of having to choose between removing you from office, or face impeachment from the Democratic General Assembly, you take the fall.”

            Report

            • And that’s the correct response, isn’t it? As an officer of the law, you don’t get to pick and choose what laws you’re going to enforce. Well, OK, of course you do. But what you can’t do is make public statements in your official capacity as as an officer of the law that you aren’t gonna uphold the laws of the land.

              Report

                    • Resisting by voting or petitioning your government sound good to me. If you job is to enforce the laws then well then i certainly can’t see anyway that could turn out poorly to just enforce the laws you personally like. If you believe the laws are unjust then go to the courts.

                      I think there are plenty of laws cops don’t like or agree with. I have personally heard cops say they don’t agree with lots of DV laws. They didn’t like having to arrest that guy who got in that fight with his wife. She was a real shrew and didn’t look badly hurt. And who the hell wanted to enforce those vandalism laws against those good ol boys who were just “havin some fun” with that gay guys house.

                      If you really want to go with cops should just enforce the laws they like, then follow that thought through.

                      Report

                • Since your disagreeing without presenting an alternative, I can only assume you think he should have said “Sure, all you sherrifs out there, do whatever you want! Following orders the law of the land equals Fascism!”

                  Report

                  • Well, I think that it’s a safe argument to say “if there are enough crimes out there to occupy your time, try to focus on the ones that are the result of people committing harm in the commission of crimes that are not unconstitutional first. When you run out of those, maybe focus on the ones that involve harm in the commission of crimes that are of questionable constitutionality. If you run out of those, maybe then you should start focusing on enforcing laws of questionable constitutionality where no one is being hurt.”

                    Report

                    • Well, the Supreme Court has been striking down quite a few gun laws as unconstitutional, ones that have been on the books for decades and scrupulously enforced. Under almost any reading of Heller it’s doubtful that any AR-15 ban or magazine capacity limit would be Constitutional, since those make up not only the most popular personal firearms and the standard infantry rifle for the United States, but that the magazines in use are not only not unusual but represent the most common choices of citizens buying guns for general use and self defense. There might be an early precedent if the early Republic had banned powder horns or put limits on powder horn capacity, but they even let private people own cannons.

                      Report

    • If you write over the original copy, then that officially changes the Constitution.

      But the original is kept in John Roberts’ underpants, so you will have to be stealthy about it.

      This is how the “Don’t mess with Brad”, and the “Ozzie Rules” clauses got inserted into the Constitution.

      Report

  7. What every well regulated militia needed circa 1955. Think of all the mass homicides these babies contributed to! Why I can see the headlines now… um no I can’t it never happened. Ordinary citizens could buy these every day of the week.

    Report

    • We don’t live in 1955 anymore. Different century, different set of morals.

      And, there’s no turning back the clock. We’re stuck with what we’ve got (which is much less… the more we’ve “advanced”, the more we’ve devolved as a society).

      Report

  8. The second amendment means I should be albe to keep a small thermonuclear weapon in my basement (and ofc enrich plutonium) for self defense purposes.

    *engages cloaking device*

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *