On The Right to Bear Arms

Writes Joseph J. Ellis, in the Los Angeles Times:

The 2nd Amendment represented Madison’s attempt to respond to the fears of a standing army by assuring that national defense would reside in the states and in militias, not at the federal level in a professional army. The right to bear arms derived from the need to assure that state militia could perform its essential mission.

All this was what constitutional scholars call “settled law” until Heller, in which the high court ruled that the right to bear arms, despite the language of the 2nd Amendment and the historical context of its creation, existed independent of service in the militia.

I guess he missed the years of Second Amendment scholarship which generally convinced most of the legal academy that the “settled law” was anything but. Actually, Second Amendment law was far from settled in terms of collective rights. This article is full of ignorance on a great many topics, including the fact that “original intent” originalism has largely fallen out of fashion and has few supporters these days even among ardent originalists.

But even Scalia, fully aware of the legal precedents he was overturning, saw fit to insert the following caveats near the end of his opinion.

What legal precedents? Heller and McDonald have overturned nothing. Miller, in fact, is still valid case law because it was never the collective rights case that people imagined it to be.

8 thoughts on “On The Right to Bear Arms”

  1. They still try that old canard about militias. Its not as common any more thankfully, but it comes up.

    Now they try the “fire” doctrine- “You can’t yell fire in a theater!” Except they have no idea what that means. That came from a case supporting jailing speech condemning the draft in WWI. Do they really want that? No. It was overturned with the Brandenburg case, and now only speech inciting imminent lawless action is not protected. If we had that same jurisprudence with the Second, there wouldn’t be background checks or the NFA.

  2. Well for starters, Madison also famously remarked that a Bill of Rights would not be necessary, as only those powers spelled out within the “carefully enumerated particulars”, which were delegated to the central government by the states, could be exercised by the federal government. So even in the absence of a second amendment, it was understood by almost everybody at that time that only the states could regulate the use and possession of arms.

    And yes, the Second amendment was intended as a guarantee that the federal government could not infringe the rights of individuals to keep and bear arms, with an eye toward militias under control of the states. Of course none of this means to imply that the federal government is free to regulate anything not related to militia service. But it is also true that nobody at that time would have questioned the power of state governments to regulate the use of arms as their respective peoples saw fit. The only barrier to gun regulations prior to the 14th amendment was each state’s constitutional guarantees.

    So I think the author of the article actually has a point, but only to a point. :)

  3. I would LOVE an honest revisitation of Miller, which seems more likely in the wake of the crazy assault weapons bans being passed in the states now.

    It seems to me that Miller clearly protects arms useful for militia service. No militia purpose for short barreled shotguns was provided, which upheld the NFA–I guess it helped the government’s case that the defendant didn’t show up.

    I think today you could clearly present tons of evidence that the AR-15 is exceptionally useful for militia purposes as envisioned by Miller. It takes NATO STANAG magazines, is compatible with the standard issue Army rifle (active, reserve, and guard), is sanctioned for competition by the CMP, is the preferred patrol longarm for most state and local law enforcement agencies, etc etc.

    The AR-15 seems like exactly the arm Miller (and Heller, under “common usage”) are intended to protect.

      1. Technically, it’s only an M16 if it’s selective fire AND Uncle Sam paid for it.

        1. Except to the ATF, which uses “M16” and “AR15” as shorthand for “automatic” and “semiautomatic”, respectively.

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