The militia part of the Second Amendment

The Washington Post has a front page story saying that the Second Amendment had always been construed to refer to a “collective” right to own firearms on the part of state militias until 2008 when the Supreme Court ruled that it refers to an “individual” right.  This change in interpretation, the article contends, was because the NRA nefariously funded legal research that supported its novel position.

I think that argument is absurd.  Read the gist of it after the jump. But then I’d like to discuss the “militia” part of the 2nd Amendment.  Since the Constitution says that “a well regulated Militia [is] necessary to the security of a free State,” shouldn’t we have a well regulated militia, as opposed to a standing army?

By Peter Finn:

In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.

“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”

More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.

As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the NRA.

For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.

For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship has been a mark of its strategic, patient advocacy.

“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl T. Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”

The Second Amendment states: “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.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.

“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not individuals, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.

via NRA money helped reshape gun law – The Washington Post.

At any rate, what should we do with the “militia” part of the 2nd Amendment?  A militia  is not the same as National Guard units, which, while answerable to a governor are still part of the national military system.  In a militia, ordinary citizens–who kept weapons in their homes–were organized for local defense as needed, whether to fight off Indian attacks or fight in a national war.  In fact, most of the military power of the United States for much of our history was not in a standing army but in individual state units.  (Thus, the Civil War was waged by units like the 7th Illinois Volunteer Infantry Regiment and the 1st Virginia Brigade.)

If we are really going to follow the Constitution, should we switch back to a decentralized militia model for our defense needs, rather than the massive standing military establishment that we have today?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Grace

     ‏‏
    The Second Amendment is not hard to understand, in fact it’s rather simple:

    Amendment II

    “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.”

    It cannot be much more straightforward than stated above.

     ‏‏

  • Grace

    Gun politics in Germany – Wikipedia, the free encyclopedia

    “By 1938, the Communists threat was essentially eliminated. However, preparing for his invasion of Poland, Hitler needed to draw up illusion of an imminent threat to justify the actual initiation of a war. Hitler and the Nazi’s decided to draw up a gun law that would only apply to the new qualified “citizen”. IN 1935, Jewish residents were no longer considered citizens, and thus gave the precedent for new laws to prevent any resistance. The gun control provisions under the 1938 German Weapons Act, which superseded the 1928 law. As under the 1928 law, ONLY citizens were required to have a permit to carry a firearm and a separate permit to acquire a firearm. Furthermore, the law restricted ownership of firearms to “…persons whose trustworthiness is not in question and who can show a need for a (gun) permit.” Under the new law,”

    •  ‏ Gun restriction laws applied to all guns and ammunition. The 1938 revisions introduced restrictions specifically reiterating the prohibition for Jews to hold firearms, but made it easier for one party nazi regime to gain acquisition and transfer of rifles and shotguns, as was the possession of ammunition.

    •  ‏ The legal age at which guns could be purchased was lowered from 20 to 18.

    •  ‏ Permits were valid for three years, rather than one year.

    •  ‏ The groups of people who were exempt from the acquisition permit requirement expanded. Holders of annual hunting permits, government workers, and NSDAP members were no longer subject to gun ownership restrictions. Prior to the 1938 law, only officials of the central government, the states, and employees of the German Reichsbahn Railways were exempted.

    •  ‏ Jews were forbidden from the manufacturing or dealing of firearms and ammunition.

    “Under both the 1928 and 1938 acts, gun manufacturers and dealers were required to maintain records with information about who purchased guns and the guns’ serial numbers. These records were to be delivered to a police authority for inspection at the end of each year.”

    http://en.wikipedia.org/wiki/Gun_politics_in_Germany

  • http://www.intrepidlutherans.com Douglas Lindee

    We went through this back in the 1990′s, with the vacillation of President George H. W. Bush, followed by the full frontal attacks of General Janet Reno and President Billary Clinton. It’s worse this time. At least Bush and Clinton had respect for the Rule of Law, even if they did try to equivocate and lie their way around it. I have no confidence that Emperor Obama has anything other than a bold disregard for it.

    The term “Regulate” in the Second Amendment has nothing whatsoever to do with government policy or legislative power. None. The term “regulate” is (going back hundreds of years) originally a gunsmith’s term, and referred to a process used especially in the production of double barreled smoothbore long-guns (shotguns and muskets), by which the parallax between the end of each barrel and a distant point was minimized as the barrels were adjusted relative to one another, prior to securing them together, such that when the gun was discharged, the ball/shot from both barrels would center at the same point of aim (say, at 30yds). That is, the “regulation of firearms” was a manufacturing process which produced guns that were relatively accurate. If one cares to read W. W. Greener’s The Gun and its Development, published in 1910, it is plain that this is exactly how he is using the term (i.e, “producing guns that shoot accurately”), and it is a term that is still used in this way by gunsmiths even to this day. Even John Muller’s Treatise of Artillery (1780) uses the term this way.

    Further, given the association of firearms with their military use, the term “regulate” came to mean something about the way they were used in military scenarios, and about those who used them. A “regulation field” was a place where soldiers would drill with their firearms, whether small arms or even artillery. In fact, many WWII movies speak of “regulating artillery.” For instance, the hero of a battle scene calls for an artillery bombardment, giving the coordinates; a few shots are fired, and he issues correction (“two clicks south, one east,” etc.); a few more shots are fired, roughly on target; the artillery thus regulated, he orders, “Fire for effect.”

    In a military context, especially referring to guns, the term “Regulate” means one thing, and one thing only: the capability to accurately and effectively use the gun. Period. “A well regulated Militia, being necessary to the security of a free State” — that is, a militia capable of effective use of its arms, being necessary to the security of the free State — “the right of the people to keep and bear Arms, shall not be infringed.” This is very simple to understand, and all the more salient when one realizes that the vision of our Founders written into the Constitution created a FREE society in which a standing peacetime army was prohibited (U.S Constitution Article One Section 8), and could only be mustered in time of war for a period of two years (without re-approval). The people, not Army Regulars, were the first line of their own defense. Indeed, this Constitutional prohibition on a standing Army was honored all the way until the 20th Century. Thus SCOTUS in D.C. v Heller, “the first clause does not limit the second.”

    The right to keep and bear arms is a fundamental human right, more than that, it is a fundamental human right that is enumerated in the Constitution. Moreover, as the Second Amendment plainly reads, the fundamental human right to keep and bear arms is NECESSARY to the security of a FREE State — a society in which citizens are sovereign over their property, and bear not only the right, but the obligation to defend it, to defend their safety, and to defend their freedom. This was well understood by our nations founders, and well understood by those who continue to value Liberty. And, thank God, understood by SCOTUS in D.C. v Heller, “the first clause does not limit the second.”

    “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that’s good.” — George Washington in a speech to Congress, January 7, 1790″Laws that forbid the carrying of arms… disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” — Thomas Jefferson in his Commonplace Book, quoting Cesare Beccaria, On Crimes and Punishment“The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.” — James Madison, Federalist Papers, #48.”What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty… Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” — Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment

  • http://www.intrepidlutherans.com Douglas Lindee

    Last “paragraph” above was a disaster. HTML didn’t format right. I’ll try it again:

    “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that’s good.” — George Washington in a speech to Congress, January 7, 1790

    “Laws that forbid the carrying of arms… disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” — Thomas Jefferson in his Commonplace Book, quoting Cesare Beccaria, On Crimes and Punishment

    “The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.” — James Madison, Federalist Papers, #48.

    “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty… Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” — Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment

  • Carl Vehse

    “The Washington Post has a front page story saying…”

    That has become a tipoff for fifth-column media propaganda.

  • Tom Hering

    The plain reading is that individuals have a right to keep and bear arms for the purpose of a well regulated militia. If militias no longer exist, neither does the individual right that was granted, specifically, to maintain them. I don’t much care if the current Supreme Court disagrees with me.

  • BW

    Militias still do exist. But they are never very permanent anyway. They come and go as needed.

  • Tom Hering

    No, militias do not exist as an institution anymore. Name one, today or recently, organized by a state for defense against armed threats, foreign or domestic.

  • Cincinnatus

    I’m actually with Carl on this one (I feel dirty even saying that…). Though the question of what constitutes a “valid” militia might be of academic value, someone needs to tell the Post that, as far as its political relevance is concerned, that ship sailed long ago. In 2010, actually. In that year, the Supreme Court decided decisively that the second amendment, in its original understanding, protects an individual right to keep and bear arms, in part because militia were not, in fact, centrally organized in 1789 but were to be composed informally of all adult males. In any case, part of the debate in the Supreme Court boiled down to whether we ought to emphasize the “right of the people” clause or the “militia” clause because the Amendment is written ambiguously such that it would be awkward to have both. The Court sided with the People.

    You don’t have to agree with this reading. Not all constitutional scholars do. But the fact that this is purely an academic debate at this point means that it shouldn’t be on the front page of the newspaper.

  • BW

    Maybe not state organized, but there are groups that call themselves miltias. I thought they fit the definition, I didn’t think a militia had to be state organized. I am wiling to admit I may be wrong. But just because they haven’t been needed and organized by states recently doesn’t mean that one day states won’t need them again. I just think that provision ought to be left in the Constitution.

  • Cincinnatus

    And Tom’s reading @6 is extremist. Actually, “legitimate” militias do exist: the National Guards. But very, very scholars, even among the pro-gun-control crowd, believe that only the National Guard should be armed. There is a middle way that recognizes that guns have a variety of important uses (hunting–i.e., subsistence–for example) while also acknowledging the need for some prudent regulations.

    I would respect Tom’s point more if he didn’t sound like a banal imitation of Thomas Hobbes.

  • kerner

    The point is not whether a militia does or does not exist right now. The point is whether one could be raised from the general population if we needed one. With an armed population, raising a militia remains possible. Without one it is not possible.

    As for what “the plain meaning” of any Constitutional provision is, I would think that the words of James Madison carry a little more weight that those of contemporary anti-gun nuts.

  • Random Lutheran

    You’re not going to have a well-regulated militia unless the populace is armed. An unarmed populace is not going to have much ability to regulate anything, much less a militia… (This is not what was intended in the 2nd, I’m sure, but I bet the Founders would agree with the sentiment. An armed population at least gives a tyrranically-leaning government pause.)

  • SKPeterson

    Just so everyone remembers, the word ‘regulate’, when used by the Framers, did not connote control and regulation in the modern sense by the state. In fact, the 2nd Amendment could be construed as completely prohibiting the federal government from any interference whatsoever in firearms ownership and “regulation.” Further, it would argue that the federal government cannot have any power whatsoever over the state militias, especially the state National Guard. Or perhaps, states should step away from having national guards, and instead have state guards that cannot be ordered around by the President to go off and provide unlimited support for whatever war for empire or other foreign adventurism is popular in DC at the moment. The implications would then satisfy Tom’s reading @ 6: the states themselves would have their own sanctioned militias. Why, under the “well regulated” phrase they could then require each and every male of a certain age to own a military-style assault weapon, keep it in their homes with an adequate supply of ammunition and “regularly” show up at the local armory to provide proof that they are capable of safely maintaining and using the weapon. Exemptions could be granted to clergy or conscientious objectors, and small fines imposed on others who fail to meet their civic obligations.

  • Kempin04

    I agree with Carl.

  • http://homewardbound-cb.blogspot.com ChrisB

    The Federalist papers make it clear the founders thought the militias would appear when necessary to smack down the federal government. Our system is full of checks and balances, and the ability of the people to rise up is one of them.

  • http://www.bikebubba.blogspot.com bike bubba

    “No, militias do not exist as an institution anymore. Name one, today or recently, organized by a state for defense against armed threats, foreign or domestic.”

    Not in the United States, but the militia model is the Swiss model. For that matter, mandatory military service in most of Europe and a fair amount of Asia is built around this model–it’s just that most nations don’t let their militiamen keep their guns at home anymore.

    Personally, I think it would be cool if we went to a vestigial standing army and used what was left to train local militias–done at the city, county, or regional level.

  • Joe

    I have four main concerns with the argument that NRA in the last 30 years or so has changed the concept if the Second Amendment.

    1. it ignores the founders understanding of the 2nd Amendment and its origin in English Common Law. That has been discussed above.

    2. it also miss understands the common and accepted understanding of the Second Amendment in the post-civil war era. In drafting, passing and ratifying the 14th Amendment, the Congress and the People through their ratification of the 14th Amendment made the Second Amendment applicable as against the state governments too – (this was the point of the privileges and immunities clause of the 14th, even though the S. Ct. decided to use the due process clause via the concept of incorporation). Indeed, in 1866 the Congress enacted a companion statute to the 14th amendment that stated: “laws … concerning personal liberty [and] personal security … including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens.” This statute makes express that the Congress believed the Second Amendment to be about “personal liberty and personal safety.” In fact, liberal anti-gun Constitutional Scholar Akhil Amar (Yale Law School) believes the 14th Amendment transformed the founders Second Amendment (which he argues was tied to service in a militia) into a personal, individual civil right.

    3. The reason for a right does not diminish the right. The Supreme Court has held that the first clause the Second Amendment does not operate to limit the second clause. That’s great. But even if we accept the position that the first clause tells us why the founders wanted the people to be armed, the why does not limit the right. Think of it in the context of the First Amendment, we know with 100% certainty that purpose of the Free Speech clause was to protect disfavored political speech. Does this mean we should not have free speech in any other context? Should we pass all kinds of laws outlawing various forms of art, literature, business speech, etc.? Of course not. The same applies here.

    4. The Second Amendment is not the only source for the right to keep and bear arms. Again, if we accept the notion that the Second Amendment is strictly about militia service that does not mean that the gov’t can start taking our guns. Again going to liberal anti-gun scholar Akhil Amar. He points out that the 9th Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.” There are two schools of thought on how to apply the 9th Amendment. The first (and more traditional view) looks to rights that the colonists would have enjoyed under English Common Law or where currently enjoying in the colonies/states and under the Articles of Confederation. The Colonies and the English Common Law recognized the rights of free men to own guns disconnected to service in the militia. The second school looks to the rights the people have assumed the have. These are expressed via state laws, state constitutions and by society as a whole simply acting in accordance with the presumed right. (This is the view Amar holds and it is the view express by Justice Harlan in the Griswald v. Connecticut case that recognized a general right of privacy. You may remember that the majority came up with its silly penumbra theory. Harlan simply looked to the 9th Amendment and found that the right to decide whether or not to use contraception was a right reserved to the people). Doing this analysis for the Heller case, it would be clear that never has American society accepted the proposition that people are not free to own guns for self-defense, hunting, recreation, etc. Thus, even if we accept that the Second Amendment is completely limited to militia service, we still have an individual right to own guns via the 9th.

  • Jon

    Well, I’m not so sure that the Guard isn’t really our modern day militia, you know, being “citizen soldiers” and all.

    They have a bifurcated legal status, they operate either under Title 32 status which is state control, OR they operate under Title 10 status Federal control.

    In Title 32 status, the Guard can perform all kinds of state functions to protect the state from threats–insurrection, natural disaster, even crimes.

    In Title 10 status, there’s things the Guard can’t do for their states, like law enforcement on account of the Posse Commitatus laws.

    Way back in the good old days, what would happen to operational control of a state militia during a national emergency anyway? Wouldn’t the OpCon of the militia chop over to the Federalist, or later the Union Army?

    It is conceivable that if a state militia that refused to chop OpCon over to the national command but simply chose to keep fighting in parallel under its own direction might be violating the Law of War, and its members therefore subject to criminal prosecution instead of having combatant immunity.

    When the Southern militias didn’t exactly chop over to the Union Army, but instead went to the Confederate Army, well there you go, result was Civil War.

    What if a state wanted to cecede today? Would their Guard have to align with the USG? Guard units have lots of heavy arms. They don’t necessarily have to BYOG these days–they have a lot of the nation’s armor and aircraft.

  • Econ Jeff

    I’m not sure the NG is our only option for current militias. California has a Naval militia and military reserver that are separate from the NG: http://en.wikipedia.org/wiki/California_Military_Department.

    It may not be what people immediately think of, but there are alternative structures out there.

  • Jon H.

    I think the Founders would be appalled to see the culture of death fostered by the modern interpretation of the 2d amend, but perhaps I’m wrong. It may be that our status as the most violent and deadly first-world nation is inbred in our national DNA. In other words, we kill because we can’t restrain ourselves.

  • BW

    Is the modern interpretation of the 2nd amendment creating a “culture of death”? Or is there a “culture of death” which is taking advantage of gun ownership in the US?

    I don’t think the US is alone as a dangerous place. Mexico has its rough parts, London is not exactly crime-free. I think there’s more at work than just US gun ownership.

  • SKPeterson

    Jon H. – I think they would be more appalled at the grotesque monstrosity our government has become since 1787, but yes much of our modern culture is infatuated with death, especially of the inconvenient people such as the unborn, the elderly, or those who are just to much of a burden and are in the way.

    Interestingly, one might point out that our culture may not have been as violent at the Founding as it is today. I’m not sure we have the statistical evidence to say. However, if so, I would posit that there appears to be a direct corollary between the size of our government, the corresponding diminishment of individual responsibility, and the subsequent increase in violence in our modern society.

  • Dave

    I’m with Tom Hering on this issue. Even if you try to count the National Guard as a Militia it isn’t BYOG (Bring Your Own Gun).

  • Jon H.

    SKP @23 You’re right, though I wouldn’t limit ‘infatuat[ion] with death’ to the unborn and elderly. Our sad infatuation with free market health care contributes to thousands of otherwise preventable deaths each year. If you could harness the enthusiasm gun proponents have for the 2d amendment, and direct it toward an amendment to reverse Roe v. Wade, you might do something about abortion, but our right to carry assault weapons into Safeway is much more important than an unborn’s right to life. Let’s face it.

    As for those who are inconvenient, let’s count murder victims among them. But let’s get over the foolishness that the culture of death does not depend on the free and easy distribution of guns.

  • Rick Ritchie

    I recently watched some movies by Roberto Rossellini, some of which covered historical figures. The one titled The Taking of Power by Louis XIV was especially interesting. He used debt to consolidate power. He also put a lot of attention on court dress. His idea was that if an outfit worn to court cost the annual salary of a member of the nobility, they would not have time to plot against him. They would be spending too much time worrying about their clothing to do so. This combination of favoring of debt and focus on costume reminded me of some segments of the John Adams miniseries. Alexander Hamilton was portrayed as an unbalanced idiot. While I strongly dislike much about Hamilton, he was not that. I wondered whether he used Louis XIV as a model, and discovered he had. What this has to do with the Second Amendment is the following. When Hamilton was worrying about the uniform for the soldiers, the real point was that this would not be the kind of uniform that a citizen soldier could supply for himself. The introduction of such a uniform would take us another step further away from a militia and into a standing army. Such moves have obscured our view of the original vision for the country, and make even the understanding of the Constitution more difficult.

  • Reg

    The interesting part is how the article makes clear that Scalia isn’t an originalist but a right wing zealot ready to jettison established precedent at his political whim. His decisions show he views the constitution as fluidly as his liberal brethren when it suits his personal views.

  • Cincinnatus

    Jon H.

    While I know that the term “culture of death” is bandied about as a rhetorical trope and ideological shortcut (to thinking) by both the right and the left, I’m consequently unsure what you mean by the term. What does the Second Amendment have to do with our alleged culture of death?

    First of all, there are estimated to be 300 million private firearms in circulation in the United States. A tiny, tiny fraction of those are used to murder people. And America isn’t even in the top 10 countries for firearm-related deaths.

    More to the point, people use guns to kill people because they want to kill people, not because they have guns and rights and don’t know what else to do with them.

    I’d just like to know what your hyperbolic rhetoric means. The Second Amendment was written to preserve rights of self-defense against tyranny, both external and internal. Those threats haven’t disappeared, nor, thus, has the right, contrary to what Tom argues. Again, I don’t know what any of that has to do with a supposed “culture of death.” A culture of death won’t be eliminated by altering access to guns (similarly, laws against abortion aren’t going to stop abortions unless we adjust our attitudes regarding fetal life, etc.).

  • Joe

    Jon – you need to come to grips with that that over the last 20 years (’92-’12) both the violent crime rate and the murder rate have reduced by 50%. This occurred at the same time that law restricting the ability to carry guns in public have relaxed. I’m not arguing that there is a causal relationship between the lower crime rates and the prevalence of guns in public but the data do make it very hard to argue that liberalized gun laws leads to additional crime.

    Also, while we do have a higher murder rate than Great Britain, we also have an overall violent crime rate that is 3.5 small than the British over all violent crime rate.

    And we also know that less than 5% of all murders in the US are committed with rifles of any kind and since the so-called assault riffles are a subset of rifles it stands to reason that they comprise a fairly insignificant portion of murders in this country.

    This data is out there for all to see, but this guy went ahead and compiled it for us:

    https://www.youtube.com/watch?v=Ooa98FHuaU0

    Fact check also put together an interesting chart that shows murder by gun is at the lowest point since 1981. Aggravated assault with guns is at its lowest point since 2004. (nonfatal injuries and simple assault are up – I believe that non fatal injuries includes someone who shoots themselves in the foot do to their own stupidity)

    http://factcheck.org/UploadedFiles/2012/12/FirearmFacts.png

  • Rick Ritchie

    “The plain reading is that individuals have a right to keep and bear arms for the purpose of a well regulated militia. If militias no longer exist, neither does the individual right that was granted, specifically, to maintain them. I don’t much care if the current Supreme Court disagrees with me.”

    I don’t think there is anything plain about the idea that we have rights for a purpose. In my understanding, we either have a right or we do not have it. True rights are pre-political. Jefferson listed certain inalienable rights in the Declaration. And he indicated that these were not the only ones when he said “among these.” If governments are instituted to secure rights, then those rights pre-exist the governments created to secure them. Rights are recognized. Privileges are granted. I could see granting a privilege for a purpose. But not a right. To speak of the granting of a right is to speak contrary to the mode of speech used by the Founders I am most familiar with. If some Founders could be cited who had a different view of the matter, the reading above would still not be a “plain” reading, but would have to be argued for. There is nothing obvious about it to me.

  • Joe

    should read “3.5 times lower than the British overall violent crime rate”

  • http://enterthevein.wordpress.com J. Dean

    This is the Post’s sour grapes in light of the SCOTUS ruling. They’re trying to rewrite history a la Orwell’s 1984 with this article.

  • http://www.bikebubba.blogspot.com bike bubba

    “But let’s get over the foolishness that the culture of death does not depend on the free and easy distribution of guns.”

    Because it’s not, after all, like 700,000 people were killed with machetes and such in Rwanda a few years back in a brutal tribal war or anything. Except that it happened.

    Jon, maybe it’s time to get over the foolishness of assuming that it’s the tool that’s used, rather than the hand that wields it, that’s the problem. If it were the tool that was used, Chicago and Washington DC would be among the safest of big cities. Since the opposite is true, it’s time to address the people.

  • R. Hall

    Why the interest in understanding the original interpretation of the Constitution? I thought the mainstream discarded that approach decades ago. I’m not attempting any sarcasm here.

  • Joe

    R. Hall – Originalism is probably the leading method of construing the Constitution at this point. Scalia was the first adherent of it on the Supreme Court but his influence (even among the liberal wing) has been significant. Leading liberal con law scholars are even starting to taught it as a proper method.

  • SKPeterson

    R. Hall – Yeah that whole original intent thing went out along with understanding the original intent and languages of the Bible. No one cool does that anymore.

  • kerner

    Jon H

    Why is it that al you “culture of death = guns” guys never consider things like this?

    http://www.jsonline.com/news/milwaukee/marine-veteran-stops-beating-holds-man-at-gunpoint-qs95000-197766101.html

    A citizen with a gun may have saved that woman’s life. At the very least, he stopped an abusive situation that would have otherwise continued. You speak @25 of victims being “inconvenient”. Is the victim this citizen with a gun saved an “inconvenient person” to you? Because she was SAVED by guns on the street in private hands?

  • Abby

    @37 Good one. I heard a Pastor, very pro-gun, who wants to get his concealed carry permit to have at church! I agree wholeheartedly! I relish any sense of extra protection these days by good people.

    A few loonies out there should not control the atmosphere of gun freedom for law-abiding citizens with good consciences. Let not irrational intimidation win the day.

  • Abby

    I’m with Charlton Heston — I like the NRA!

  • William

    “culture of death” it isn’t guns or some clause in a document, it is sin.

  • Grace

    William @ 40

    “culture of death” it isn’t guns or some clause in a document, it is sin.

    Please be specific, as to what your definition of “culture of death” means to you.

    Definition from the Dictionary:

    Culture of death

    Culture of death has two distinct meanings:

    “A term used in Colonial Europe to describe barbaric cultures that glorified or worshipped death. This was then used as a justification for the subjugation and colonization of these cultures. The usage has been revived to describe societies that revere suicide bombers as martyrs. 1

    The opposite term coined by Pope John Paul II is Culture of Life. It is used in contemporary political discourse in many countries, including the United States and Poland, to describe nonsupportive positions on certain subjects, such as abortion, euthanasia, human cloning, poverty and capital punishment which adherents of opposing positions deem to be inconsistent with their concept of a “culture of life”. Some commentators would add to that list homosexuality, contraception and other phenomena perceived to attack marriage and the family.

    It makes no sense to banty about the phrase “Culture of death” unless you understand what it means. All too many people are tossing it from one subject to another.

  • Grace

    Abby @38

    “Good one. I heard a Pastor, very pro-gun, who wants to get his concealed carry permit to have at church! I agree wholeheartedly! I relish any sense of extra protection these days by good people.”

    As a pastors daughter, I find your comment extremly troubling. A pastor preaches the Gospel, he doesn’t bring a gun to church – with one eye on the Word of God, the other on the congregants, and his hand on a gun – very strange indeed!

    If you feel your church needs this sort of protection, I would suggest contacting your local police department, and give serious thought to hiring an armed security guard.

  • Abby
  • sg

    “The plain reading is that individuals have a right to keep and bear arms for the purpose of a well regulated militia. If militias no longer exist, neither does the individual right that was granted, specifically, to maintain them.”

    Wait, I thought the militia was necessary to a free state. No militia, no free state. No guns, no liberty. How can a person be secure in his person without the right to self defense? How can he exercise his right to self defense without arms? People must have the power to defend themselves.

  • Rick Ritchie

    A drone, being necessary to a state which responds directly to a populace that wants security and safety under any and all conditions, without being inconvenienced in any way, the right of the state to use drones shall be secure.

  • Grace

    Abby @ 43

    ➀ New Your Post – Your first link is a man who was once a poliice officer. That would mean he had a great deal of experience with guns.

    ➁ New York Times – Pastor Urges His Flock to Bring Guns to Church – Abby, I wouldn’t darken the door of such a church, who turns their church into a Fort. This church would be better served to hire an off duty police officer as a Security Guard, rather then making their church a Fort.

    ➂ WUSA – Same answer for the Washington D.C. Church as No. 2.

    ➃ From World Net Daily – Pastor Urges His Flock to Bring Guns to Church” last sentence from article – - “When was the last time that you heard of a gun store being robbed?” – - Very poor excuse for bringing guns to church.

    Abby, a church isn’t a gun store, but you can GOOLE for hours and find a few who might like to turn their church into one.

  • Grace

    My post @ 46 should have read:

    ➀ New York Post – Your first link is a man who was once a poliice officer. That would mean he had a great deal of experience with guns.

  • http://www.bikebubba.blogspot.com bike bubba

    Rick; I think the language suggests that you’ve got to carry the drone. So after you get done paying the millions to buy it and set up the controls, you’re still having a little bit of trouble with the 2nd Amendment’s clear language.

    Never mind that using it on someone who doesn’t constitute a threat to you is still murder, and that’s virtually guaranteed when you’re using a drone, where the whole point is to rain down mayhem from a safe distance.

    Regarding being armed at church; I’ve been in a church where many men and women did, and it didn’t push out the gospel. No “dirty Harry” or “rambo” types were slinging their .44mags and AKs around.

  • http://www.cyberbrethren.com Rev. Paul T. McCain

    Molon labe!

  • http://www.cyberbrethren.com Rev. Paul T. McCain

    Two words:

    MOLON LABE

  • tODD

    Two words: tough guy!

  • R. Hall

    Joe @ 35 — that’s surprising. I knew Scalia went along those lines but I didn’t expect it was making any kind of comeback other than in conservative judges.

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  • Carl Vehse

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