The Second Amendment Amends!
Both of the arguments presented to the court of appeals are sterile because both read too much into the amendment. The Second Amendment amends the Constitution; to understand its meaning, one must explore all relevant constitutional passages relating to the militia and use of the sword, plus their constitutional history. What needs to be answered is how the amendment changed any of that.
Here is what I teach my U.S. history students:
The Constitution was drafted by men of the Enlightenment for the better government of the United States than that which had been provided by the Articles of Confederation. Almost all those who met at Philadelphia in 1787 were convinced the Articles were fatally flawed and needed serious revision at minimum and more likely scrapping in favor of a new plan. Under the Articles, Congress wanted several important powers, including the power to tax and the power to raise its own troops. This made the federal government inherently too weak.
But, the powers to tax and to raise troops are terrible powers, and those who were expected to pass upon the proposed new government -- the people who would ratify the Constitution or not -- were known to be wary of them. The plan put forward had to address their concerns. Even the drafters knew that the powers to tax and raise armies were great powers which had to be controlled carefully.
There was one thing that the Founders all agreed upon, and that was that the people could be trusted, as a mass, to do the right thing in terms of preserving their own happiness and security. But, to insure that even this check did not evaporate -- and remember that all of the Founders were revolutionaries who had overthrown a central government successfully -- the Constitution's drafters set into the document fundamental checks and balances to insure that power could not be abused, and that liberty would be secure.
Most of us are familiar with many of these checks and balances. We know, for example, that the federal government was divided into three branches, and that the government really does not work very well unless all of those three branches agree to work together. That is critical to securing liberty.
The Founders went even beyond that, for it occurred to them that our central government, like the one they had rebelled against, could become corrupt and could oppress the people, internal checks and balances notwithstanding. There had to be a check on that kind of corruption.
What was these men's experience? They had united what had become the State governments to resist and obstruct the central government's (the Crown's) actions. And that really is the key to our understanding here. It is not enough to resist oppression. The Founders wanted people to be able to successfully resist oppression. While an armed citizenry certainly can help in such an endeavor, by alone it is not enough. What was needed was a mechanism for carrying out organized resistance.
The Founders knew what that mechanism was: State governments operating in concert against a central oppressor, hopefully with some outside assistance. After all, that is how we won the Revolution. Yes, an armed population could be an effective deterent to tyranny; but, one needed the political organization of a State to make such a deterent effective.
But, there is a problem here: States, themselves, could become corrupt. What if it were the federal government which was virtuous, and a State or league of states which was evil? Answering this question frames the debate about the actual meaning of the Second Amendment.
The citizens of revolutionary America feared standing armies as potential oppressors; they did not want one. They did not want their states to have one, nor were they keen on giving such power to Congress. At the same time, Congress was seen as the single authority which could be trusted with overall supervision of national defense -- recall there were some pretty nasty national enemies of America loose in the world in that time. The country needed something to keep e.g. the British off of us, and that something had to have its own check against becoming an oppressor.
The Founders solved the problem by creating potentially conflicting loyalties. On the one hand, the Constitution defined treason as levying war on the United States or aiding and abetting her enemies. But remember that States had their own treason laws too -- the notorious John Brown (of Harper's Ferry fame) was convicted of treason against Virginia, not the United States. Convention delegate Luther Martin (from Maryland), who subsequently opposed the Constitution, put it succinctly when he warned that, were Maryland and the United States to get into a fight, the citizens of Maryland would have to side with one -- and in so doing become a traitor to the other. This, responded Alexander Hamilton (in The Federalst, No. 28), was exactly what was needed -- in any physical fight over what the Constitution means, it must be the people who decide, and if necessary with their lives, their fortunes, and their sacred honor. In any fight over what the Constitution means, the people must choose which side they are on and act accordingly. And to make such a choice more than an intellectual exercise, the people had to be armed.
The right to keep and bear arms is not in the Second Amendment; it is in the fine structure of the Constitution itself and cannot disappear, unless the Constitution itself be overthrown. But, these "arms" are the arms needed to resist a tyrant's army and have little to do with carrying pocket pistols for personal self defense.
What, then, is the Second Amendment? To make the Congress effective in national defense, it had to have power to raise its own army; but, no one wanted it to have a big army. The backbone of the forces was seen to be in the State militias -- with every State having its own militia, the military power effectively was divided among many, not concentrated in a few. Problem: What makes a good army? Answer: It has to be "regulated" in the 18th Century meaning of the term. This does not mean "controlled" as the term is used today but, rather, disciplined so that it works together as a team. That means, for example, that there have to be rules in place so, e.g., everyone has the same kind of gun, or the same frequency of radio.
When you're in a battle, trust me: It's chaotic. No one really knows exactly what is going on; there's just a bunch of noise and craziness. And if your gun breaks in the middle of the fight, it certainly is very comforting to be able to get the gun of a fallen buddy and put your ammo in it and have it work. Or scarf the parts to fix your own weapon. Or top up your rounds so that you don't run out of bullets. That does not happen by accident; it happens because someone somewhere made it happen, by properly regulating the system.
There was only one power which could do that intelligently, and the Founders knew it (and debated it in convention): Congress had to have power to arm, equip, and discipline the militias, so if called upon for national defense, they all could work together. This power cannot safely be entrusted to any body other than Congress.
That brings us right back to the corruption problem: What if Congress does become corrupt? What if it tries to take our freedoms away?
If Congress has the power to raise its own troops, and it also has the power to arm the militias, if it does become corrupt, what is to prevent Congress from giving its own forces tanks and machine guns and airplanes, while it equips the militias with slings and arrows? Opponents of the Constitution quickly pounced on this weakness.
Vote "no" on the Constitution, they warned.
Supporters' solution was the Second Amendment, which guaranties to the States the power to be free from such pernicious federal regulation. But, that guarantee exists within a system which already recognized the individual right to keep and bear arms. And that, in a nutshell, is why those focusing only on the Amendment rationally can have conflicting views re what exactly is protected, for the language seems to support either position. It is only when we step back and look at the entire constitutional system that we realize that rights to arms are individual, though of a special character, just like the right to vote. Every citizen individually has the right to vote, but until we hold an election, the individual right is meaningless. Similarly with the right to arms. The Founders were men of the Enlightenment -- men of reason. They were not gun-toting crazies, nor did they want to turn all the cities of America into Dodge City. They would have been aghast at the idea of some terrorist gang securing weapons and using them in a criminal or treasonous enterprise to frustrate the law, and in the Federalist Papers, co-author James Madison referred to such groups as "factions" (a derogatory term). Recall that Shay's Rebellion was the very reason the Constitutional Convention came together in the first place. The Founders expected political organizations to show they at least had demonstrable public support by requiring them first to capture political control of a state government. Civil control of these functions comes first, not last, in any reasoned system of liberty.
So, how should the court of appeals decide the Parker case? The first thing they have to do is look at the weapons requested: Are they firearms appropriate to militia use? The statute outlaws all handguns, and in the abstract, that's too much -- it equally prohibits Derringers and a .45 auto-loader (the latter of which clearly is a military arm). But, my question is: Do any of the plaintiffs in this case claim to own, or desire to own, a .45 auto-loader (or other similar device)? If not, theirs is a plea solely for personal protection, which normally would be a question of state law only (Congress has no power to regulate in these areas). I personally believe that the D.C. ordinance is wrong; but, D.C. is not a State, and therefore relief must come from that part of the government which has plenary power over the District. Congress, not the courts, is the proper forum for redress of this grievance, to the extent it does not involve the keeping or bearing of arms in any military capacity or insuring a citizen has a real power to elect whom to serve in a constitutional crisis.
Unless the plaintiffs are bringing some kind of joint claim, encompasing both military and personal issues, their appeal should fail. The plaintiffs have no standing to sue.
My respect to judges Silberman and Griffith; have a happy -- and peaceful -- new year!
