Weak Arguments

I’m actually rather surprised by this latest from Paul Helmke, attacking the fact that the US citizenship test accepts the right to bear arms as an answer to the question “What are two rights of everyone living in the United States?”:

Next, the USCIS neglects eight out of the ten Amendments in the Bill of Rights, including: the right to be secure in our “persons, houses, papers and effects” (Fourth); the right against self-incrimination (Fifth); the right to a speedy and public trial (Sixth); and the right to a trial by jury (Seventh). With so many rights to choose from, it’s as if the USCIS got tired of reading the whole Constitution.

Finally, the “right to bear arms” is, in fact, not available to “everyone living in the United States.” While the U.S. Supreme Court is being asked to revisit this matter in the DC vs. Heller case, the vast majority of the courts have previously ruled that the right of the people to keep and bear arms must be related to service in a well-regulated militia. In addition, well-established and unchallenged Federal law prohibits “many living in the United States,” including juveniles, felons and the dangerously mentally ill (among other categories) from legally possessing guns.

Of all the arguments to make, why pick on the citizenship test?  Regardless of what Paul thinks the second amendment does, or doesn’t mean, a 2003 Gallup/NCC poll found that 68% of Americans believed that the second amendment protects a right to keep and bear arms.  Only 28% believed the Brady interpretation.  Most constitutional scholars these days have rejected that interpretation as well.

I’ll agree with Paul that there should probably be more correct answers on that list, but why penalize new immigrants to this country because they hold similar views as the rest of their countrymen, and because they can read the plain language of the constitution which guarantees that right to the people.

It seems to me the Brady’s could find better uses of their blog other than nitpicking the citizenship test to penalize new immigrants for offering a reasonable answer they happen not to like.  And here I thought the right were the ones who were anti-immigration.

17 thoughts on “Weak Arguments”

  1. Paul’s actually somewhat correct if you step back from his agenda. The right to bear arms is not one that is a right for everyone living here. It is is limited to:

    Citizens without serious criminal records.
    Citizens not under the accusation (not conviction) of domestic violence.
    Citizens not adjucated as mentally defective.
    Lawful permanent residents as above.
    Non-permanent residents wishing to take game under a current hunting license.

    I find it amusing that he uses the Brady’s own material to support his position that the only people allowed to bear arms are those using them “related to service in a well-regulated militia”. Talk about an echo chamber.

    I wonder if he realizes how dangerous his interpretation of the 2nd as it relates to the right to bear arms is. He may well get his wish and then he’ll be in a world of hurt. I don’t think he sees the unintended consequences of his position carried to its logical conclusion.

    If this is all they are going to waste their blog time on, fine by me. I get to take this test in two years time. Having some advance answers always helps.

  2. Nitpicky :) Technically we limit some people’s right of assembly too if they have been convicted of certain crimes and are released from prison or on probation.

  3. You should have “corrected” those links in the block quote.

    As Delbert Grady said “Perhaps they need a good talking to, if you don’t mind my saying so. Perhaps a bit more. My girls, sir, they didn’t care for the Overlook at first. One of them actually stole a pack of matches, and tried to burn it down. But I “corrected” them sir. And when my wife tried to prevent me from doing my duty, I “corrected” her. ”


  4. There was a time most courts held that white people could own black people and shoot Native Americans on sight.

    The Bradys understand this, and know that courts tend to correct themselves when they realize they were wrong (most of the collective rights decisions were rooted in defending efforts to disarm freed slaves and political agitators). They’re hoping that if they keep repeating it, it’ll somehow stick in people’s brains. As our host notes…the polls show that ain’t happening.

  5. I think the push for this “collective right” in terms of militia service is to achieve disarmament or limitations on private possession of arms by doing the “defunding” trick in a legal sense.

    Such as providing a remedy to restore rights (felon vote or RKBA) under the law and simply not funding it. Thus making it impossible to get something under the law since there is no mechanism to handle it.

    Now apply the same tactic to well-regulated militias. I think Paul Helmke and others who think of the RKBA as a collective right want the same thing. Get a declaration that private arms can only be had by enrolled militia members and then see to it that no militias actual exist to enroll in. So even if you wanted to have arms as a citizen and enroll in a militia to do so, your collective right is neutered by the lack of a militia anywhere.

    Does the right cease to exist? No. Does it for all practical purposes in practice? Absolutely. Hence one of the reasons Heller came about.

    I think this notion of militias is why the BC is beating this drum. If they get a “collective rights” interpretation from SCOTUS, they can use it as a wedge for civilian disarmament by encouraging States not to have militia systems in order to evade it as a “loophole”. Many States have State-level militias (Maryland and Virginia come to mind) but I don’t think possession of private arms is a requirement. Nor are either especially responsive to inquiries on membership.

    Endgame of this argument: If there no militias, no guns in civilian hands. The whole issue of “arms suitable for militia service” becomes moot if there are no militias around to evaluate the suitability of said arms. That is their twist on Miller as I read it.

    I don’t think such an outcome is terribly likely but it is one potential, if loopy, scenario. I’m not a legal scholar so my musings on the possible outcome of a “collective rights” ruling are probably way off. But I don’t discount it either.

  6. Nitpicky :) Technically we limit some people’s right of assembly too if they have been convicted of certain crimes and are released from prison or on probation.


    Really?!? Didn’t know that. Something like convicted drug dealers not allowed to protest at drug legalization rallies? Or individuals being allowed to lobby on issues related to that they were convicted for (e.g. lobbying for financial reform as a convicted embezzler)?

    If so, that makes sense. Whether it’s right is something else entirely.

  7. One issue of interest for you Matt…you wrote,

    “Many States have State-level militias (Maryland and Virginia come to mind) but I don’t think possession of private arms is a requirement. Nor are either especially responsive to inquiries on membership.”

    Check out The Militia Act of 1792. It is illegal for you and I to NOT own our private M-16.

  8. I should point out that illegal immigrants probably aren’t the ones answering that question.

    Hmm, couldn’t women own guns in the Colonial period without being part of a town’s militia? Quakers could also, but they didn’t believe in the right of self-defense (which is why they weren’t in the militia).

  9. The Constitution never refers to “state militias” per se. It refers to “the militia” broadly, and grants states power to appoint officers and responsibility to train, but in no way are “state militias” recognized. (The Constitution _does_ refer to states having standing armies – and forbids them.)

    Under enumerated powers, Congress has (replacing the aforementioned Militia Act of 1792, which still is relevant as indicating what the authors of the 2nd Amendment had in mind) declared that ALL able-bodied male citizens aged 17-45 _are_, declared unilaterally, members of the federal “militia” (others are also included, but that is a digression). Nothing about being “active”, nothing indicating a “state” subset, no other limiting or qualifying factor. Reinforcing this, Congress has implemented the Selective Service System, which enrolls exactly such individuals formally. Further reinforcing this, Congress authorized and maintains the DCM/CMP program, providing basic arms and training to any adult citizen.

    Therefore, I submit, this “active participation in a state militia” notion is FLAT WRONG, totally unsupported in constitutional law.

    The 2nd Amendment guarantees a general right for all (stupidly obvious exceptions legally excluded) to keep and bear arms.
    The DCM/CMP program provides Congressionally-supported means for any adult citizen to obtain and train in arms.
    The Selective Service System identifies those who are most reasonably expected to serve this country should pressing need arise.
    Thus, the preamble “a well-regulated Militia, being necessary to the security of a free State” is fulfilled in the broadest terms possible – and anyone acting to narrow that serves only to inhibit the security of our nation and every subset thereof.

    …and if the Brady Bunch et al keep pushing their “militia only” interpretation, it’s gonna backfire with common citizens carrying M16s in the streets. (I hope they keep pushing that interpretation.)

  10. Department of Civilian Marksmanship/Civilian Marksmanship Program. Formerly were DoD programs to promote civilian marksmanship by selling off military surplus to civilian shooters at discounted prices. CMP is privatized now. I don’t think DCM exists anymore.

  11. “There was a time most courts held that white people could own black people and shoot Native Americans on sight.”

    Actually, I might argue a bit with the first statement. Slavery went away in Massachusetts and New Hampshire largely because of courts interpreting their state constitutions as banning slavery. (Not that New Hampshire had many slaves at the time.)

    The second statement is largely incorrect. Pretty early on in Plymouth and Massachusetts there are whites being tried, convicted, and executed for the murder of Indians. For example, the execution by Plymouth Colony of Arthur Peach, Thomas Jackson and Richard Stinnings on September 4, 1638 for the robbery and murder of a Narragansett Indian who lived long enough to give a dying deposition.

    There was a serious effort at giving justice to the Indians. As an example, one of my distant relatives at Plymouth was sued about 1660 or so for having stolen a pig and a gun from an Indian, and was ordered to both compensate the Indian and return the gun. (I suspect the pig had already been eaten.)

    Where there is a serious problem in the Colonial period, it is often people who are basically crooks like Bacon leading proto-democratic efforts to grab Indian lands, while people of the upper classes, like Governor Berkeley, who were doing their darndest to both protect the Indians from Bacon and friends, and prevent a war.

  12. yeah Clayton but many of my ancestors walked the Trail of Tears. I remember having Indian relatives and being part Indian before it was “cool”.

  13. “And here I thought the right were the ones who were anti-immigration.”

    A common misconception. It would be considerably more correct to say:

    the right were the ones who were anti-ILLEGAL-immigration

    It’s the same law and order thinking that goes into the desire to control criminals rather than guns.

  14. “yeah Clayton but many of my ancestors walked the Trail of Tears. I remember having Indian relatives and being part Indian before it was “cool”.”

    Indeed, things definitely worsened as the franchise broadened in the 1820s and 1830s. But the notion that whites were allowed to shoot Indians on sight is grossly overstated. There are times during some of the Indian wars when distinctions between combatants and non-combatants were completely lost (on both sides). The events grossly fictionalized in Soldier Blue are worth studying to understand how these situations developed.

    It is interesting that the Catawbas managed to hold onto their North Carolina lands and the Cherokees did not, is at least partly because the Catawbas had fought on the American side in the Revolution, and the Cherokees had somewhat sided with the British government. (And with good reason: one of the factors driving the Revolution was the desire of whites to be able to settle on Indian lands west of the Proclamation Line of 1765.)

    After the Revolution, having been on the Revolutionary side helped the Catawabas; even 50 years later, Catawabas and whites were drinking together to celebrate their comradeship in the war. The Cherokees got screwed instead.

    The Cherokee removal is also one of those reminders that if you have to choose whether to have overwhelming force on your side, or the law, overwhelming force is more useful. The Cherokees won the legal battles; to quote Andrew Jackson, “The Supreme Court has made its decision, now let them enforce it.”

Comments are closed.