The Unhelpful Second Amendment

Law professor Garrett Epps notes that the Second Amendment is “spectacularly unhelpful.” Second Amendment scholars have honestly settled a lot of this ambiguity. I also particularly resent this subtle dig in his conclusion:

It is thus in the interests of everyone concerned with the role of firearms in society to contribute more than images and myths to a reasoned resolution of this question—and during such discussions, perhaps we should all keep our hands where others can see them.

The implication that our scholars have been dishonest and argued only through “images and myths” is insulting and unfounded. We ultimately won at the Supreme Court because we had better and more thorough scholarship on the issue, and could answer the criticisms of the other side argument by argument.

It is amazing to me that no one had any difficulty figuring out the meaning of the Second Amendment until the 20th century, when gun control started to become popular. Dave Kopel has a pretty good account of how the collective rights myth came about. Maybe we should keep our hands where others can see them, but not because we deal in myth and images. Those who have opposed the “standard model” of the Second Amendment are the ones who have been engaged in the real myth making.

11 Responses to “The Unhelpful Second Amendment”

  1. Andy B. says:

    “no one had any difficulty figuring out the meaning of the Second Amendment until the 20th century”

    An honest question: Is that really true?

    I frequently read accounts of local government (mainly local law enforcement) acting with total arbitrariness with regard to guns, in the 19th century, and no one apparently raising a peep about the question of rights. Mainly it seems they would just take guns away from people (usually blacks, Italians, Irish, and other undesirables) when there was a local political consensus that to do so would be prudent.

    • Rob Crawford says:

      That was more contempt for equality before the law than not understanding the 2nd.

    • Sebastian says:

      Eh, probably not the best way to phrase it. But in the 19th century we at least had the excuse of treating all rights pretty badly, especially where dark skin tones were concerned.

      • Andy B. says:

        “especially where dark skin tones were concerned.”

        It is fascinating that if you look at 19th Century pop culture art, the undesirables of the moment are almost always portrayed as being at least “swarthy.” Irish immigrants were portrayed as ape-like and dark-skinned (blonde hair and blue/green eyes notwithstanding) and, coincidentally, earlier today I had reason to look up some things relative to the Johnstown Flood, and illustrations of the “Hungarian ghouls” (alleged to have robbed the dead) showed them as black-faced, curly-haired, and with scraggly teeth. Without a caption one would have guessed they were supposed to be Africans. I wondered if the illustrator had ever even seen a “Hungarian,” or if he just supposed all bad people were Negroid.

    • Brad says:

      It’s is very important to keep in mind the 14th as well as the 2nd amendment. Remember that the Bill of Rights as originally passed was a limitation on Federal power only, not a limitation on the States. In theory a State or local power could do whatever they wanted to an individual citizen of a State.

      In addition the Federal Government for most of American history had neither the money nor the will to interfere very much with the life of the common citizen. It has only been with the rise of the Federal behemoth in the 20th Century that infringement has become an issue.

      Now the post-Civil-War 14th Amendment was supposed to give citizens of the States the protection of the Federal Bill of Rights, including the RKBA. But the U.S. Supreme Court nullified the 14th Amendment in 1877, rendering it virtually powerless and allowing the States to run wild, hence all the nasty gun-control of the 19th Century mostly aimed at suppressing Blacks and immigrants.

      During the 20th Century, the 14th Amendment has been gradually reempowered, leading to the 2010 decision of McDonald v Chicago, which prohibits the States from violating the U.S. 2nd Amendment. Today the long grinding work is getting the lower Federal Courts to take the Supreme Court seriously and begin overturning the numerous violations States and localities still impose on the 2nd Amendment. We live in situation where half the populace live in free states and the other half live under Democratic domination.

      Of course asses like professor Epps are laying the groundwork for justifying overturning D.C. v Heller, and nullifying the 2nd Amendment. All it takes is one more anti-gun Supreme Court justice than the two Obama has already added to the Court. If the anti-gunners are successful it will only lead to a very bad place for our nation, as eventually a civil war over guns is just as predictable as was the civil war over slavery.

  2. John says:

    I believe I have seen the name of Garrett Epps before, in connection with anti-rights arguments. Is he another of the “usual (more or less) suspects”?

  3. John says:

    Just noticed that he is billed as a “former reporter for the Washington Post”.

  4. Sigivald says:

    Andy: Remember that before the 14th Amendment, the entire Constitution applied only to the Federal government, so that’s 2/3 of the 19th century where it didn’t apply to local governments at all.

    How (or even if!) incorporation of it via the 14th Amendment applied to the States took, if I recall correctly, quite a little time to work out.

    That’s a different question than what the Second Amendment itself meant, which wasn’t in much doubt at all.

    (Amusing factoid: It was and remains perfectly legal to own your own muzzle-loading artillery.)

    • Andy B. says:

      That is a good point. How did it apply to the territories, that made up the “Wild West,” where lawmen often sought to disarm the cowpokes who rode into town? And, usually it was the lawmen who wrote the rules. I would think the federal constitution should have prevailed in federal territories.

      As far as Pennsylvania, as an example: The state constitution of 1790, that was in effect until 1874, stated “The right of the citizens to bear arms, in defence of themselves and the State, shall not be questioned.” That remained verbatim (except for punctuation) in the constitution of 1874, and in our present constitution of 1968, where the spelling of “defence” is modernized. I guess you would have to look into the legal definition of “citizen” at the time, in some cases, but my main point is that the concept of it being a “right” was fairly well established in most places, while in practical application that was ignored almost as much as it is today. I would guess that even then there was a dominant attitude of, “We can’t allow abstract ideas like constitutionality interfere with ‘common sense.'”

  5. Felix says:

    The simplest argument against the collective right interpretation is that if it were true, it would be the only part of the constitution to enumerate a right (as opposed to power) allocated to the government. The idea is too bizarre to hold water.

  6. Brad says:

    Expect Epps to be among the first to applaud a Supreme Court decision which overturns D.C. v Heller and which destroys the 2nd Amendment. The enemy still hopes they can go there and undo what the court did in 2008.