by Theodore Dalrymple
As a non-American, I hesitate to wade in on an American constitutional matter, let alone with a former U.S. attorney such as Thomas Ascik who wrote recently on the recent Supreme Court decision on gun rights. Nevertheless, it seems to me that the notion that the Constitution protects Americans’ rights to carry guns in public in any circumstances of their choosing is of the same kind of intellectual legerdemain as that which gave rise to the Roe v Wade decision in 1973.
Where I agree with Mr. Ascik is in his disagreement with Justice Breyer’s dissent. It may well be true—in fact it is true—that guns are used annually in thousands of suicides, and also for violent criminal purposes, but this is totally irrelevant to the matter at issue, and it is alarming even to see it raised. It is no more relevant to the question of the right to bear arms than is the fact that coat hangers will be used to procure abortions relevant to the constitutional issue of whether there is a right to abortion. Justice Breyer’s dissent seems to be typical of those who think the Supreme Court should make rather than interpret the law. First comes the desired result, then comes the argument to reach it, using all kinds of evidence, much of it no doubt of dubious meaning or significance. It is procrustean jurisprudence.
But I suspect that something similar, at a less egregious level no doubt, is being done to reach the conclusion that Americans have the constitutional right to go down to the supermarket with a gun (of what caliber or power of arms is another question, seldom addressed).
The Second Amendment, which I daresay most readers know by heart, says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This amendment was passed in relation to a document, the American Constitution as unamended, which says (in Section VIII, paragraphs 15 and 16) that Congress shall have the power:
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…
Now it seems to me that on any natural reading of the above, the right to keep and bear arms that is not to be infringed is in the context of a well-ordered militia, not in the context of going shopping. If it were simply a matter of allowing people to carry guns whenever and wherever they felt like it, the amendment would surely have read “The right of the people to keep and bear arms…” simpliciter. There would have been no need to mention the militia at all. In fact, there would have been a need, or at least a good reason, not to mention it.
I am in sympathy with Originalists who believe that the Constitution should be interpreted as literally as possible, but they should not abandon the position once it yields a result different from the one that they would like.
Moreover, to bear arms is not the same as to carry arms. To bear arms has the connotation, if not quite the denotation, of possessing and using arms in an organized and disciplined fashion—as, for example, in a well-regulated militia. And the purpose of this disciplined bearing of arms is to protect the country, either externally or internally. It is not an invitation to privatized and egotistical Rambo-ism on a small or domestic scale, even if it is alleged that such Rambo-ism conduced to personal safety. We are talking here about what words mean, not the desirable result if they were taken to mean something else.
If this is correct, the right to keep arms is the right to keep them ready for the purposes of the militia (as, for example, in Switzerland), and under the discipline of the militia. Any citizen may join the militia as a matter of right, but it beggars belief that a militia would be obliged to accept a person who was, for example, a known drunkard or violent criminal. True, the onus for refusal would be on the refusing officer, the presumption would be of fitness to serve just as a criminal court makes the presumption of sanity in an accused. But the fact is that the Constitution clearly saw a need for officers rather than an armed mob or lone wolf gun enthusiast.
Again, the term the people is different from people, that is to say anyone or everyone. The people surely means here the population as organized in a free State, not every last Tom, Dick, and Harry considered as mere individuals. If the people meant people, that is to say, everyone, and if the right to possess and carry arms could not be infringed, it would mean that there could be no limitation whatever on the right, no matter the record, the conduct, or even express intentions of a person, to possess and carry arms. I find it difficult to believe that this is what the Framers meant or could have meant.
I am in sympathy with Originalists who believe that the Constitution should be interpreted as literally as possible. Still, they should not abandon the position once it yields a result different from the one that they would like. This is dishonest. Let me add that the struggle in the United States over gun control, both for and against, strikes me in some sense as mere shadow-boxing. You might get some of the law-abiding to give up their guns, but you would probably turn many otherwise law-abiding persons into outlaws, so attached are they to their guns. Of the criminals and their guns, I need hardly speak.
Those who think that abortion should be open to women in practically any circumstance should either campaign to have the Constitution changed, or change the law in those states in which abortion will be restricted, rather than try to foment civil war by claiming that the Supreme Court is illegitimate. Likewise, those who believe that everyone should be allowed to carry a gun in any and all circumstances should either campaign to have the Constitution changed to make it quite clear, or campaign to change the law in those states that do not allow what they think should be the case.
First published in Law and Liberty.
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7 Responses
Mr. Dalrymple
I enjoyed your essay on the American Second Amendment. I agree with you (If I read you correctly) that the Second Amendment has limitations, just like the First Amendment protecting free speech has limitations. Americans do face limits on free speech, such as advocating for violence on an identifiable group or individual, and that limit is being tested quite regularly these days by numerous people holding leadership positions in American society. If one seeks clarification on what the framers of the American Constitution meant when they wrote the Second Amendment, one need only peruse their writings on the subject in, The Federalist Papers. What they meant when they wrote the Second Amendment is very clear: “…Little more can be reasonably aimed at, with respect to the people at large than to have them properly armed and equipped…” This is just a single sample from Federalist paper No. 29 by Alexander Hamilton. I assume statements such as the one above was considered by the Supreme Court Justices in their deliberations regarding the breadth and scope of the Second Amendment. My understanding is that when the Framers wrote “The People” they meant “the people at large”, which is every lawful citizen of the United States. If they were also members of a ‘well-regulated militia’, so much the better.
I carry wherever I go to protect myself and my family. I don’t want to have to use mtyweapon but I will if needed.
I look at the countries like Germany under Weimar and later the The Third Reich along with the USSR that outlawed the personal possesion of firearms and I see how easy it is for the state to crush its own people under its boot.
As an Englishman you may feel comfortable living in a country where you can not protect yourself. Then again your police (along with your politicians and government workers) did absolutely nothing as thousands of your girls were systematically raped by Muslims, but that makes you merely a serf or a subject not a citizen. Your choice I guess.
If you ever change your mind then emigrate to America where you will feel a lot freer than you do in your country.
I wish more people would sit down with a cup of tea and carefully read the Second Amendment. It’s not that hard.
Speaking as a retired law enforcement agent (DEA) and being quite familiar with guns, I respect the position that we are living in a very dangerous society and have a lot of people running around with guns they should not have (referring to crazy people and criminals). The fact is that we have over 300 million guns in the country, some in the hands of good people and some in the hands of criminals. In addition to everyday criminals, we also have a massive mental health crisis in the country-witness our recent mass shootings.
In my view, there is no real solution. You can pass the most restrictive gun laws you want, but the guns will still be out there. Places like Washington DC, Chicago, and other large cities have strong gun laws. They also have a lot of shootings.
Now we have the assassination of Shinzo Abe in Japan, where guns are almost impossible to get. So the shooter made his own gun. Until today, people would have said Japan is the perfect example, but if you have a historical foundation of not allowing people to have guns, which I assume stems from the end of WW2, it seems much easier to enforce the gun laws. We in the US have too much gun history to wipe it away by passing a law. The simple fact is that people living in such a dangerous society have the right to defend themselves, their homes, and their families.
Our police are going to have to seize guns one crime, one arrest at a time. All the criminals in the US are going to keep their guns until they are caught committing a crime. Biden can pass whatever law he wants, but until we get back to putting violent criminals in prison, the murders will continue. You look at all the despicable DAs in LA, NY, Chicago, and SF (the latter of whom has just been recalled) who are letting criminals walk, and you see a big part of the problem.
If we need to build more prisons, build more prisons. Personally, I am not concerned about prison overcrowding. Let them sleep on top of each other. (They do anyway.)
We are doing a crappy job making use of the restraints we now have available. Police and school authorities are ‘criminally’ incompetent in missing blatant warnings of upcoming violent behavior admitted on and off social media. We can rocket to the Moon and back but we can’t take escalating terrible threats and behavior seriously? Seriously!?
The ambiguities and inadequate specificities in the 2A are compensated for in the subsequent 9A and 10A unenumerated powers. No one is going to begrudge the State using its unenumerated right to outlaw a citizen owning a tactical nuclear weapon.
How many times has it been reasonable for lawful citizen concealed or open carry in public places (schools, churches, market places, parades, …)to prevent murders before police/militia could arrive on the scene to prevent murderous mayhem?
Let’s OPTIMIZE prevention procedures and understand the need to prioritize the trade offs in applying resources. Read at least one of Thomas Sowell’s 30+ books to organize your effort intelligently.
I may be a deluded Eloi dependent on luck and adequate law enforcement, but I live in New Jersey and haven’t touched or owned a gun in 45 years. The gun assassination of Shinzo Abe was very disturbing. Japan’s strict gun control laws, however, are very effective. The assassination merely proves that gun control laws are not sufficient by themselves.
Well, I live in Canada, whose gun laws are liberal compared to most western nations other than the US, though they are also enforced arbitrarily at RCMP caprice and our government is insistent that they need to be more restrictive even though Canada is spectacularly safer than the US, and even though it is rare for any Canadian not an aspirant gang banger to be shot, and the latter with illegal guns anyway.
So FWIW.
I sympathize with much of what Dr Dalrymple says, though I would note that the Americans if nothing else are maintaining the authentic English militia tradition of old, when they used language that assumed every able bodied man was part of the militia, whether in a trained, embodied or volunteer unit actively engaged in training, or not. And that he was able to possess his weapon whether engaged in such activity or not. And often was. It is not so long ago that at least a gentleman might have wandered London with a concealed pistol and none been the wiser or the least put out. Canada, too. So the current American perspective ought not to be quite so alien.
More ease of access to guns is not what has changed in any of these societies.
Alas, I too get frustrated when it’s interpreted in the US as a need to carry, open or concealed, I don’t much care the distinction, everywhere all the time. Even most American cities haven’t been that dangerous in most areas most of the time in recent decades. I’m also open to restrictions of understood rights as long as the same kinds of principles are applied to every one of them- not severely more restrictive tests for the 2nd amendment than for the first, for example. Though the first is under threat too. And there are other rights to be considered- I should have the right as master of a private home or a business to require you not to bring your gun into my property, and turn you away for failing to follow my rules. If I am a business, I might be generous and provide a lockbox behind the counter. Very Old West. If I’m a home and you’re a friend/guest, on some level I’d appreciate you not packing in my house, I’m not going to kill you. OTOH, I’m not afraid of the things as if they were black magic, so I might also be unfazed by a gun’s presence. We’d work it out in private I’m sure.
How to square all these circles, I don’t know. But I do know my own country is governed by people who’d rather that no one own guns, and that they must be approved by government even in principle, according to their definition of “need”, as though it is their proper business to tell me what I do or do not need.
And all that from someone who has never owned a gun and is unlikely to ever be bothered.