Mimesis Law
17 July 2018

Brett Arends Is Clueless About The Second Amendment

July 15, 2016 (Fault Lines) – Market Watch columnist Brett Arends starts off strong.

Can we please stop pretending that the Second Amendment contains an unfettered right for everyone to buy a gun? It doesn’t, and it never has.

Half true! The Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) establish that Americans have two things:

  • an individual right to bear arms
  • that can be restricted in some way (though the Supreme Court punted on saying how)

Let’s look at the restrictions first. It’s true that post-Heller, the Second Amendment doesn’t protect an “unfettered” right to carry a gun. As Scalia put it in the majority opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From [Sir William] Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

But nobody knows what sort of “fetters” might pass constitutional scrutiny. We can guess, because the Heller majority opinion gives us several examples of restrictions the Supreme Court considers “presumptively lawful.” According to Scalia, “felons and the mentally ill” may be kept from bearing arms. Guns can be kept out of “sensitive places” like schools and government buildings. “Conditions and qualifications” may be imposed on the sale of weapons. And the Supreme Court read an earlier Second Amendment case, United States v. Miller (1939), as imposing constitutionally acceptable restrictions on the type of gun one may carry.

Specifically, the Supreme Court said that it understood Miller to mean only weapons not “part of ordinary military equipment” can be regulated. It draws on additional language from Miller to give meaning to that phrase:

[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Scalia goes on to explain that guns “in common use” are those used in defense of the home as well as in the militia. (In Revolutionary times, they were one and the same.) Accordingly, the Supreme Court concluded that under Miller, only your ability to bear arms “not typically possessed by law-abiding citizens for lawful purposes” is unprotected by the Second Amendment.

If all this strikes you as a little vague, you’re not alone. Who’s to say what “conditions and qualifications” are kosher? Which places are “sensitive” enough to justify excluding guns? And the Heller court’s reading of Miller is especially problematic. The circular “not typically possessed by law-abiding citizens” language appears to imply that once a gun is sufficiently uncommon in private hands (because it’s been regulated or banned?), it may constitutionally be regulated or banned. And the Supreme Court’s understanding of and historical context for the “ordinary military equipment” phrase make things like the Miller-era ban on Tommy guns look pretty dubious.*

But despite their warts, what Heller and McDonald do is recognize an individual Second Amendment right to bear arms, then enjoin the federal government and the states from encroaching on that right. Post-Heller, the “right for everyone to buy a gun” is as “unfettered” as it’s been in a long time.

Arends then quadruples down on the stupid:

The Second Amendment of the U.S. Constitution doesn’t just say Congress shall not infringe the right to “keep and bear arms.” It specifically says that right exists in order to maintain “a well-regulated militia.” Even the late conservative Supreme Court Associate Justice Antonin Scalia admitted those words weren’t in there by accident. Oh, and the Constitution doesn’t just say a “militia.” It says a “well-regulated” militia.

Where to begin? For a while, the view that the Second Amendment only protects the right to carry a gun as part of a militia was the prevalent one. It was completely unheard of in the 18th century, all but unknown in the 19th and traces its modern origin to the 1939 Miller decision. (And our old-ass editor recalls having grown up with it.) Fortunately, Heller clarified the issue once and for all. What Arends claims Scalia “admitted” is a flat-out lie: in the Heller majority opinion, Scalia went to a lot of effort to establish that the Second Amendment protects both an individual right and a collective right to bear arms.

The Heller Court breaks the Second Amendment down into a prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) and an operative clause (“the right of the people to keep and bear Arms, shall not be infringed.”) As Scalia explains, the prefatory clause doesn’t limit the operative clause. Instead, it explains the reasoning behind the right. Under Heller, the “well regulated Militia” language is a statement of purpose (roughly: Americans may carry guns because they need to be effective when fighting together). It does not say Americans only get to have those guns when they show up for militia duty, or curtail what even in Revolutionary times was a long-established right to carry a weapon in self-defense.

And “well regulated”? In the 18th century, “regulated” meant “fighting fit,” not “subject to the control of the government.” Arends’ claim that the constitutional language has our modern meaning is on a par with saying the sentence, “’My dear Holmes!’ I ejaculated” proves Sherlock and Watson were gay.

Arends bleats on about the “militia,” trying to find support for his cause in the Federalist Papers:

What did the Founding Fathers mean by that? We don’t have to guess because they told us. In Federalist No. 29 of the Federalist Papers, Alexander Hamilton explained at great length precisely what a “well-regulated militia” was […]

A “well-regulated militia” didn’t mean guys who read Soldier of Fortune magazine running around in the woods with AK-47s and warpaint on their faces. It basically meant what today we call the National Guard.

We’ll pass in silence over Arends’ idea that the Founding Fathers were a unitary body. Since Heller makes Arends’ reading of the Second Amendment obsolete, everything he says as of this point is irrelevant. But for the sake of completeness, let’s plumb the depths of his historical ignorance.

It seems Arends only skimmed Hamilton’s essay. (He certainly summarizes it wrong; the notion that Hamilton was arguing for federal control over state militias is absurd.) Just as everything militia has no immediate bearing on your individual right to carry a firearm, so does Federalist #29 have nothing directly to do with the Second Amendment. Hamilton’s subject is the size of the militia, how it should be trained and whether it poses a threat to liberty; fundamentally, it has little to do with guns. The closest it gets to helping us interpret the Second Amendment is this:

Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

That’s wholly consistent with the Heller court’s understanding. Hamilton appears to recognize the individual right to bear arms; in this context, the militia’s role is to expand access to guns and provide training, not be the only forum in which guns may be carried. Of course, Scalia didn’t have to worry either way: countless jurists from the Enlightenment through the 19th century back him up in finding an individual right, rooted in the twin rights of self-defense and protecting against a tyrannical government.

Arends is shockingly ignorant of both constitutional law and the nation’s history. In a way, that’s not surprising; many deeply passionate people are, and facts have a bad way of interfering with their bias. But when journalists willfully misstate facts to advance a political agenda, everyone loses. Once our rights are gone, they’re gone. If we must have a conversation about whether to sacrifice our liberties, it should at least be an honest one.

*Scalia acknowledges this problem and offers the “not typically possessed by law-abiding citizens” language to avoid it.

9 Comments on this post.

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  • Greg Prickett
    15 July 2016 at 9:57 am - Reply

    I was amazed that Ahrends attributed Federalist #29 to being about the Second Amendment, especially since #29 was penned 20 months before the Second Amendment was submitted to the States for ratification and 6 months before it was even proposed.

  • jdgalt
    15 July 2016 at 11:08 am - Reply

    The existing definition of “militia” in federal law (10 USC 311) includes most civilians.

    • DaveL
      15 July 2016 at 1:55 pm - Reply

      Well, most male civilians.

    • Greg Prickett
      15 July 2016 at 2:17 pm - Reply

      Shh, the gun grabbers don’t want that part brought up. It doesn’t fit their worldview.

  • maz
    16 July 2016 at 3:27 am - Reply

    “In the 18th century, ‘regulated’ meant ‘fighting fit,’ not ‘subject to the control of the government.'”

    “To the People of the State of New York: The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.” — opening lines to Federalist No. 29

    I agree Ahrends blows it — well, several times, at least — especially in his misinterpretations(s) of this Federalist Paper, but somehow I trust Alexander Hamilton’s take on the word ‘regulated’ more so than Lindenberg’s. Unless someone can rephrase that opening line, substituting some variant on ‘fighting fit’ for ‘regulating’ and have it make sense, that is — because I certainly can’t.

    As the noted jurist Robert Plant reminds us, “‘Cause you know sometimes words have two meanings.”

    • David Meyer Lindenberg
      16 July 2016 at 4:17 am - Reply

      You know, I provide cites for a reason.

      • Robert Beckman
        17 July 2016 at 8:26 am - Reply

        Careful there. Replace the Oxford English Dictionary examples with “controlled by the Legislature” and these still make sense…. (Parens snark mine.

        1714: “The practice of all well-regulated courts of justice in the world.” (John Marshall has made his ruling, now let him enforce it)

        1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.” (Pi = 3)

        1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.” (Only after losing the election)

        1862: “It appeared to her well-regulated mind, like a clandestine proceeding.” (CIA tried this again in the 1960’s)

        1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.” (A position shared by both Presidential candidates)

  • If Chicago Won’t Learn, Alan Gura Will Make It
    20 January 2017 at 9:43 am - Reply

    […] regulations that the majority considered historically and constitutionally acceptable. But it was totally earthshaking in that it reestablished the Second Amendment right to keep and bear guns, not just collectively […]

  • Oral Argument on Ezell II – Page 4
    20 January 2017 at 1:50 pm - Reply

    […] teach them: If Chicago Won?t Learn, Alan Gura Will Make It I disagree with this line But it was totally earthshaking in that it reestablished the Second Amendment right to keep and bear guns, not just collectively […]