January 23, 2013

Thought for 1.23.13

Political fundamentalists read the Constitution in the same way that religious fundamentalists read the Bible: without context. While claiming to be faithful and literal, their understanding often wanders very far both from the text and its original intent.

Tobias Stanislas Haller BSG
Thinking particularly of those who imagine a militia was designed to attack the government rather than to serve it...


Scott said...

Well said. And when not misinterpreting that opening phrase of the Second Amendment, they're ignoring it altogether, even though it reads like a prerequisite for what follows (because it is). The Second Amendment is all about the goal of a well-ordered militia, which my having a gun certainly wouldn't serve.

Tobias Stanislas Haller BSG said...

Thanks, Scott! In some ways the 2d amendment is long past its sell-by date, now that we have a standing army.

It is also worth noting that the Second Amendment is the only one that expresses a right in terms of a condition, or offers a reason or cause why that right should exist. The reason and cause having ceased, one might well observe that the "right" similarly ceases to apply, or at the very least to retain its raison d'être.

Kevin K said...

The analysis of the 2d amendment advanced also seems a bit without context.

Militia has been defined to include, in some definitions, the able bodied male population of a country.

The drafters of the constitution clearly understood that governments could come to be oppressive. In fact, they had some first hand experience with this situation. This suggests that an armed population as a brake against tyranny may have been on the drafter's minds.


Kevin K said...

Thomas Jefferson suggested that the entire constitution only last 30 years so that the next generation not be saddled with the rules of their ancestors.

The Second Amendment may be past its sell by date but I think that the drafters would have been very concerned about vesting all power in a standing army.

Given the revolutionary backgrounds of most of the drafters and that many definitions of militia extend to the male population of a country it seems highly probable that the founders viewed the second amendment as creating a right in the general population to hold arms, subject to regulation.

Tobias Stanislas Haller BSG said...

Kevin, the point is not just about standing armies. The National Guard is very likely much closer to the intent of the framers. It is an "organized militia." Given that, we have no need for an "unorganized militia" such as conceived in the 2d Amendment, as you suggest -- the able-bodied men of the region. And I agree that there was suspicion of standing armies.

My point is that the Constitution does not express this is a simple right but as a restraint on infringement for a particular reason. The same is not true of the other rights enumerated.

Can you provide any evidence from the period in question to support the suggestions that:

1) The authors had in mind an armed populace overthrowing a duly elected government, or

2) concern for a general right to bear arms, similar to the other rights (freedom of speech, religion; right to speedy trial, etc.?)

Tobias Stanislas Haller BSG said...

I think that George Mason's "Virginia Declaration of Rights" adopted in June 1776 gives a good example of this context. There is no mention of a "right" to arms, but there is this:

"Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

So the issue, as I say, isn't about gun regulation simply, but the present day need for more of a militia than the National Guard, since we have an armed forces under civilian control (much as Macarthur might have resented it!)

JCF said...


Kevin K said...

If you read the entire second amendment you will note that the right to keep and bear arms is vested in the "people". I would argue that there is a reason that the second amendment does not create a right on the part of the states or other governmental entities to maintain military forces. I believe that the 2d amendment was, as it created a right held by the people directly, intended to create a right to private ownership of weapons as a final defense against a government that became or becomes a tyranny. Many dictators have initially been elected.


Tobias Stanislas Haller BSG said...


It is quite true that the Second Amendment vests the right to bear arms with the people. However, as I noted, the amendment also states that this is for a purpose: the necessity of a militia for the security of a free state. You argue a somewhat different purpose: a defense against tyrannical government. I think the answer as to which interpretation is the more likely lies in the text of the Constitution itself, where the purpose for a militia is defined and regulated.

Article I section 8 states among other things that Congress has the responsibility:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;. . . . .

In other words, the militia exists to serve and defend the state, including suppressing insurrections raised against. There is no suggestion that the militia exists to defend private citizens against their government.

My point is that given the existence of an organized militia as well as a standing army, the reason the Constitutional text gives for not infringing private ownership of weapons no longer applies. I do not by that mean to say that there should not be a right to keep and bear arms. What I am saying is that the reason given for this right no longer applies. A fully contextual reading of the Constitution as a whole supports that interpretation.

Kevin K. said...

I understand your point but I think the terms "to execute the lawas of the Union, and to suppress Insurrections..." would also apply to certain governmental misconduct which may properly be resisted by the people acting outside of the structure of a militia. Assume that a president refused to step down after the completion of his or her term[s] in office. I think that the people would then have a right to rise up and resist his or her attempt to retain power as this would amount to an insurrection. The bill or rights modifies that terms of the constitution and I would argue that if your interpretation were entirely correct, would render the provisions in the bill or rights redundant. One principle of legal construction is that terms of a statute should be construed to avoid rendering any word or term superflous.

But I must add, this is fun and I enjoy your arguments.


Unknown said...

I read recently that the Second Amendment was included in James Madison's Bill of Rights because in order to gain election to Congress, he made certain promises to his constituency, notably freedom of religion (in order to gain support of Evangelicals) and the continuation of the State Militias, which were felt necessary in the South to keep the majority slave population under control.

"State" means one of the "states" joining the Union...not the Federal Government. "Free" means free men, not slaves.

The article I read (unable to cite here) maintained that the question of tyranny by the Federal Government did not enter into any of the discussion about the Amendment.

It was about the Southern States preserving their right to maintain the slave-enforcing militias that were in place.


Tobias Stanislas Haller BSG said...

Thank you, Wayne. I think the article you are referring to is by a man with the singularly unhelpful name Bogus. The Hidden History of the Second Amendment. While I join him in dismissing the insurrectionist theory that Kevin is advancing, I have to say that in spite of the scholarly appearance of his paper, it seems to place far too much weight on a notion that there is some connection between the militia and the slave patrols.

There are a couple of problems with this argument. The main problem is that the existence of militias is already provided for in the body of the Constitution. That the militias are assembled from able-bodied private citizens, and that the state might not be able to provide arms to all of them, gives the reason for making sure that there is no infringement of their being able to bear arms.

Second, and probably more importantly, the slave patrols are not the militias. Nothing in the Constitution or the Bill of Rights addresses the issue of having a police force or other law enforcement in a state --- it is only about the militia.

Finally, to address the use of the word "free" --- it is used in reference to the state not the individual citizens. At the time the Bill of Rights was adopted there was no such thing as a "free state" in the sense that that term came to be used in the years leading up to the Civil War (that is, as opposed to a "slave state") --- a few states adopted gradual abolition acts (by which the children of slaves would become free upon reaching a certain age) beginning in Pennsylvania in 1780, but slavery itself was not outlawed.

So it seems to me, that the main reason for the second amendment is to provide for the very thing that it declares: the arming of a militia to defend the state against invasion.

By the way --- also take note of the Constitution article 1 section 10, that forbids individual states from waging war unless "actually invaded, or in imminent Danger..."

Kevin K said...

I doubt that freedom of religion in the bill of rights would have appealed to 18th century "evangelicals". Most notably, the bill of rights did not apply to the states. Many states had "state" religions after the constitution was enacted for that reason. The individual states gradually eliminated these institutional religions.

I agree that the system of slave patrols set up in the South were not militias. Although militias could be called up to supress a state's internal insurrections, such as the Whiskey Rebellion.

Unknown said...

Stephen Waldman, is founder of beliefnet.com, and author of "Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty." He says that Madison gained election to Congress by promising the "evangelicals" (Anabaptists, Baptists) that he would promote a "Bill of Rights" that would preserve freedom of religion, which was not explicit in the new Constitution.

They had been persecuted in some of the states which still had established relgions, and wanted protections.

Kevin K. said...

The bill of rights would not protect evangelicals from state persecution of religion. The bill of rights limited the federal government, not state governments.

Kevin K

Brother David said...

So you are stating Kevin K that a US state today could pass a state law that restricted religious freedom in said state and that such law is protected from interference by the US Supreme Court due to religious freedom in the US Bill of Rights only applying to the federal government?

Tobias Stanislas Haller BSG said...

Bro David has asked the question that came to my mind. It seems to me that both the supremacy clause (Article VI ¶2) and the 14th amendment would stand in the way of an individual state contravening a constitutional right. (I understand that Justice Scalia has taken a somewhat narrower view at least in certain instances, but I think he is in a minority.) Again, this is where the context of the whole Constitution becomes important.

dr.primrose said...

Starting in the 1930s, the U.S. Supreme Court has held that certain rights in the Bill of Rights -- originally binding on the federal government and not the states -- was incorporated into the due process clause of the 14th amendment, which is expressly binding on the states (although the older cases did not expressly use the "incorporation" theory). These rights have been considered one at a time; there has never been a wholesale incorporation of the entire Bill of Rights into the 14th amendment's due process clause.

Most rights in the Bill of Rights have in fact been so incorporated, including things like freedom of speech and freedom of religion (since the 1930s and 1940s). In 2010, the Supreme Court held for the first time that the 2nd amendment -- the right to bear arms -- was so incorporated.

Not everything in the Bill of Rights has been incorporated into the due process clause, for example, the 5th amendment's requirement that criminal proceedings be initiated by a presentment or an indictment by a grand jury. That provision is applicable on the federal government and is not now (and very likely never will be) binding on the states by incorporation.

Tobias Stanislas Haller BSG said...

Thanks, Dr. Primrose, for the valuable reminder that the findings of the judiciary are also an important part of the larger context of the understanding and implementation of the Constitution. In a way, referring back to my original post, this mirrors the role of the Tradition as the record of the church's continued engagement with its fundamental text. What the texts "mean" cannot be derived from taking single clauses from the larger textual and judicial or traditional context.

Kevin K said...

Dr. Primrose,

You are entirely correct that not all of the bill of rights has been incorporated into the 14th amendment. However, none of the bill of rights were binding on state governments when the constitution was originally adopted.

Of course, on a constitutional level, the Supreme Court has held that the 2d amendment creates a right of private ownership of "arms". I suppose that renders the debate over the purpose of that right moot.

Kevin K

Tobias Stanislas Haller BSG said...

Not quite moot, Kevin, as all private rights can be limited by law -- which is the point at issue. When ones exercise of a right creates a public danger, it can be restrined. So the issue in question is, at present, what limits can be placed upon "arms" that preserve the right but maintain good order? And one way to determine that is to look to the original purpose for which the right was articulated.

Kevin K. said...

I believe all constituional rights may be subject to some restrictions. However, express consitutional rights are generally subject to heightened standards before they can be restricted. The value of the heightened standard, for those who support the particular right, is that the restrictions tend to be viewed with suspicion.

PS You are sounding like Justice Scalia. He is big on original intent.

Tobias Stanislas Haller BSG said...

Kevin, unlike Scalia I don't see original intent as a governing principle. I do see it as important in understanding any document. As with Scripture, I apply a three-step process of "interpretation":

1. What does the text say? (This is not as obvious as it sounds! Sometimes texts exist in variant versions, for instance.)

2. What did the text mean in its original context, for the author and the contemporary readers. -- Again not always the same thing.

3. What does the text mean for us today. This can also be informed by the historic record of what the text has meant in the intervening years.

For the Second Amendment, this would raise questions for me such as, did the original authors intend this to mean people could bear arms such as they might have in their home for other purposes --- defense and hunting, for example --- or did it mean you could own artillery to roll out and use as part of the militia?

This isn't as silly as it sounds cause it touches on the question of limiting types of weapons; and frankly I don't see a constitutional ability to place any limit on weapons themselves under the amendment as it stands. The general appeal to safety might be an issue, as with the limit on free speech against falsely shouting fire in a crowded theater. But that would only apply to the use of weapons not their possession -- and the amendment refers both to keeping and bearing. So does the amendment grant protection to the ownership of the Tomahawk missile or thermonuclear weapon? It could well be argued that these are the sorts of things one would need today to help defend against an invasion.

It seems to me that anti-gun legislators are on firmer ground when demanding registration; there is nothing in the Constitution that says one has a right not to register the possession of firearm, or that the government lacks the power to do such registration.

I'm not entirely convinced the government has the constitutional right to place any other restriction on weapons. Which is not to say that I don't think they should -- in fact, I think the Second Amendment needs to be either rewritten or further amended to clarify just what the limits are -- in the present day. The only other course, it seems to me, is to recognize that we no longer make use of an unorganized militia, and the whole amendment is moot.

Kevin K. said...

I don't think your points are at all silly. I just counldn't resist noting the original intent component of your argument as I imagine you are not Justice Scalia's biggest fan.

However, strict original intent would encompass a right to arns of the time, so it would be a right to keep and bare a brown bess or pennsylvania long rifle. At the extreme maybe a 32 pounder.

A rule of statutory (and consitutional construction) is to avoid absurd results. A rule creating a right to artillery seems to me to fall into such a result. This would defeat an argument that the 2d amendment provides a right to tactical nuclear weapons. While I can't prove it, I suspect the founders were visualizing the "minute men" taking a musket out the door to Lexington when the 2d amendment passed.

Tobias Stanislas Haller BSG said...

Thanks, Kevin. I think original intent is very important -- it's just I think we live in a different time and have to adapt. Allowing only muskets now makes no sense, even if that was all that was "intended." I think we need to apply a principle the rabbis applied to the Law: it has been given by God, but that means we are responsible for interpreting it, which may be at odds with God's "intent" but as the law has been given it is no longer under God's control.

So while a tip of the hat to the Founders is always due, we need to be responsible in our own time for the meaningful employment of the law, including constitutional law.

Kevin K. said...

Although I probably give more weight to original intent, it is slightly unsettling when we agree.

Kevin K. said...

We probably assign different weight to original intent in our respective analysis. The musket comparison addresses some of the limits of original intent.

Kind of unsettling when we agree.

Tobias Stanislas Haller BSG said...

I'm not as disagreeable as I may sometimes appear ;-)

In the long run I am a libertarian; I believe the primary role of government is to serve the people, not regulate them, so I take very seriously any attempt to over-govern, even if it might be on a matter where I am sympathetic.

The present post was really not about gun rights, but about how people read the Constitution.