Libertarian Centralism Loses On Seven
The Chicago-based U.S. Seventh Circuit Court of Appeals -- agreeing with the Second Circuit in New York but disagreeing with the Ninth Circuit in San Francisco -- held today that the second amendment does not apply to the states. Following the famous Supreme Court ruling in District of Columbia v. Heller, the National Rifle Associated sued the cities of Chicago and Oak Park, challenging their handgun bans as unconstitutional. A district court judge dismissed the lawsuit, because Heller dealt with a law enacted by the D.C. government, which as an agency of Congress*, while Chicago and Oak Park acted subdivisions of the State of Illinois.
The Supreme Court has long rejected application of the second amendment to the states. But the NRA argued those precedents could be "bypassed" -- thanks to the fourteenth amendment -- and the second amendment applied to the states. Judge Frank Easterbrook, writing for the Seventh Circuit, declined to arbitrarily apply some parts of the bill of rights, but not others, to the states:
Thus far neither the third nor the seventh amendment has been applied to the states--nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the [Supreme] Court's selective (and subjective) approach to incorporation is hard to predict.
[The Ninth Circuit] asked whether the right to keep and bear arms is "deeply rooted in this nation's history and tradition." It gave an affirmative answer. Suppose the same question were asked about civil jury trials. That institution also has deep roots, yet the Supreme Court has not held that the states are bound by the seventh amendment. Meanwhile
the [Supreme] Court's holding that double-jeopardy doctrine is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," was overruled in an opinion that paid little heed to history. "Selective incorporation" thus cannot be reduced to a formula. (Citations omitted.)
This nicely summarizes the danger of the "libertarian centralism" argument prevalent in cases like these. It's certainly tempting to say the states should be bound by the second amendment. But the language was clearly written to limit the federal government. And once you get into the habit of "selective incorporation," you've done exactly the opposite -- the federal government, in this case the Supreme Court, gains enormous arbitrary power at the expense of liberty.
Even if the second amendment were applied to the states, under the Supreme Court's Heller decision, local governments would still have largely unfettered power to restrict the use of weapons. The Court did not uphold the original intent of the second amendment -- recognizing the right of citizens to defend themselves against government tyranny -- but only a heavily restricted right of self-defense in the home.
The larger point, of course, is that "liberty" cannot be synonymous with federal monopoly. Even a statist like Judge Easterbrook can recognize that:
[M]unicipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.
Unfortunately, the Seventh Circuit's decision is only a stepping-stone to an eventual return to the Supreme Court. No doubt we'll then be subjected to another blizzard of libertarian-sounding amicus briefs begging for the justices to expand the federal government's power in the name of "liberty."
*Some libertarians argued that Heller was incorrectly decided because Congress acted as a state legislature when it allowed the D.C. gun ban to take effect. I've never found this argument persuasive. The residents of the District of Columbia have no power to adopt their own state constitution. The D.C. Council exists as a regulatory agency, albeit one with nominally elected members; it is no more a legislature then the Federal Trade Commission. That said, I agree that Heller was wrongly decided since it did not recognize an unqualified right of self-defense against state aggression.
Comments (30)
Gil
What? The Supreme Court didn't hold the original meaning of the 2nd Amendment - well-regulated state militias something like what they have Switzerland? Besides who said that the militias were always meant to be a geurilla force to go underground and defeat a federal government gone bad? It seems it's more of another type of law enforcement agency that could be called in times of need to aid the state, e.g. strike-breaking.
Published: June 2, 2009 7:14 PM
Mark
Oliva claims "the language [of the Second Amendment] was clearly written to limit the federal government." Is he reading the same Second Amendment I have in my copy of the Constitution? The First Amendment begins "Congress shall pass no law...". Clearly, the First Amendment was intended to limit the power of the Federal government. The Second Amendment never limits its restrictions to Congress. It begins by talking about the security of a free state, "A well regulated Militia being necessary to the security of a free state," as in the state of Virginia or the state of Massachusetts. It ends saying "the right of the people to keep and bear arms shall not be infringed." Where in the text of this amendment does it restrict itself to limiting only the Federal government. A stand alone reading of the Second Amendment clearly protects a universal right of the people from infringement by government at any level, and a comparison to the First Amendment only makes this more obvious.
Different laws for different states is indeed a sign of liberty, but the Constitution is the highest law of the land, and in the case of the Second Amendment, it recognizes a natural right of the people and protects the people from any infringement of that right by any level of government.
Published: June 2, 2009 7:20 PM
jc butte
The essense of the second amendment is the retention of the right of the people, as stated in the Declaration of Independence, to overthrow by force a government that has exceeded it's mandate and become tyrannical. It doesn't distinguish between states and the federal government in this regard.
Published: June 2, 2009 7:32 PM
S.M. Oliva
"[T]he Constitution is the highest law of the land, and in the case of the Second Amendment, it recognizes a natural right of the people and protects the people from any infringement of that right by any level of government."
So you're arguing the second amendment is an affirmative grant of power to the federal government that allows it to overrule the acts of state and local governments? I don't see how the text can be read that way.
"The essense of the second amendment is the retention of the right of the people, as stated in the Declaration of Independence, to overthrow by force a government that has exceeded it's mandate and become tyrannical. It doesn't distinguish between states and the federal government in this regard."
Except that it's an amendment to a *federal* constitution. I find it difficult to argue that the adopters of the amendment -- which included the state legislatures that ratified it -- intended it to apply to state acts, given the lack of express language.
I thank both commenters for their insights.
Published: June 2, 2009 7:53 PM
jc butte
S.M. Oliva writes:
"Except that it's an amendment to a *federal* constitution. I find it difficult to argue that the adopters of the amendment -- which included the state legislatures that ratified it -- intended it to apply to state acts, given the lack of express language."
People and militias reside in states, not in the federal government. If the second amendment did not apply to the states, shouldn't there have been a modifying clause to the extent that it could be superceded or modified by the states?
Published: June 2, 2009 8:17 PM
BioTube
As they say, the devil's in the details: the amendment clearly qualifies "militia" with the words "well regulated", thus perfectly allowing for an interpretation where states are not only allowed to regulate arms but required. The DC rules regulated the militia out of existence, which violates the wording that clearly states that there *must* be one; another interesting phrase is "bear arms" - it says nothing about either owning nor using them.
Let's face it: the second amendment is a lexical nightmare. In addition, the tenth amendment clearly states that states have all powers not denied them nor granted exclusively to Congress; we should welcome the revival of the Lost Amendment.
Published: June 2, 2009 8:23 PM
jeffrey
Oliva is exactly right: the Bill of Rights was to pertain to the federal government, not the state governments. I don't see how anyone can doubt this as a matter of intention and history. This principle was distorted in the 20th century in order to make room for the building of Leviathan: the whole principle of federalism was turned on its head. I'm not Constitution fan (the federalists were all liars, so far as I'm concerned) and I only dabble in constitutional history but I do know that there is nothing about the Bill of Rights, which was imposed on the bad guys whom the moderates did not trust, that was supposed to give the central state extra power over lower orders of government.
Published: June 2, 2009 8:29 PM
Walt D.
What about the 14th Amendment?
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Published: June 2, 2009 8:51 PM
BioTub
And it specifically states that it applies to the states.
Published: June 2, 2009 9:15 PM
Mark
Mr. Oliva writes: "I find it difficult to argue that the adopters of the amendment -- which included the state legislatures that ratified it -- intended it to apply to state acts, given the lack of express language."
I think it has express language. The Second Amendment specifically mentions "a free state", meaning it applies to the states. The First Amendment specifically limits the power of Congress, and the founding Fathers could have written the Second Amendment to say that "Congress shall pass no law infringing the right of the people to keep and bear arms." But they didn't. They chose to restrict all government, not just congress.
Published: June 2, 2009 9:43 PM
Dan Fallon
Thomas E. Woods and Gordon S. Wood, historians hailing from different generations, both have said that "regulated", in its 18th century context, meant to keep free, to let flow: to make regular.
Published: June 2, 2009 9:47 PM
marisson
...most state constitutions (including Illinois) have provisions identical or similar to the Federal 2nd Amendment.
Therefore, any court dispute over "federal" applicability of citizen right-to-bear-arms law...makes absolutely no difference -- because the "state" constitutional law guarantees the same right.
Published: June 2, 2009 10:07 PM
Gil
Duh! Of course the U.S. Consitution restricts the U.S. Federal Consitution and isn't about peoples' rights per se. For example, the 1st Amendment says the government can't pass laws to prohibiting free speech - this isn't the same as saying "people have the right to free speech". The Federal Government can't pass a law against people falsely yelling "fire" in a crowded theatre but a private owner can boot the person out and ban them for life Hence, free speech can be restricted by private entities.
By the same token, the 2nd Amendment says the Federal Government can't interfere with State-run militias and the arms that the militia fighters happen to have. However the language shows that how the militia is to be regulated is up to the individual States. Therefore, if a State regulates the militia so well that militia is practically non-existent then how is the 2nd Amendment violated? Alternatively, what's stopping individual States from prohibiting arms from non-militia people? Biotube calls a spade a spade - if the 'Founding Fathers' wanting a free reign of guns they should have said so. E.g. "Congress shall pass no laws infringing on the peoples' right to acquire, own, use, carry firearms. Or, "No level of government (federal, state, local) can interfere with the private individual right to firearms in any way. Or, best of all, "No government nor private entity nor private individual can interfere with any other individual's right to firearms in any way".
P.S. Waltt D - the answer is the part where the 14th Amendment says ". . . without due process of law".
Published: June 2, 2009 10:10 PM
Thinker
Yes, we are talking about the "federal" Constitution, but the Constitution does also place limits upon the states (i.e. states cannot declare war). But the language of the Constitution, which indicates to what it refers in its various sections and clauses, changes, and not just between the 1st and 21st Amendments, but between the original Constitution and the Bill of Rights:
In its original form, the Constitution only applied to the states where it specifically said so. For example, Article 1, Section 9 states, among other things, "No Bill of Attainder or ex post facto Law shall be passed." On the same subject, Article 1, Section 10 states, "No State shall...pass any Bill of Attainder or ex post facto law". By contrast, the 1st Amendment states "Congress shall make no law-...". If the writers of the Bill of Rights had used the same linguistic pattern, they would have simply said "There will be no law...", but instead, they referred specifically to the federal government. This causes a switch-strictures in the Bill of Rights (and beyond until another linguistic change) apply to both the states and the federal government, unless they are specified to only apply to one tier.
While this may not be the most popular view historically, it is difficult to argue with linguistics and we cannot ask the Founders (and expect a reply) to clarify what exactly they meant.
According to this logic, the 2nd Amendment, which says simply that "the right of the people to keep and bear arms, shall not be infringed" applies as much to the states (and lower governments, though the Founders didn't seem to give them much thought) as to the federal government.
This leaves the question of what exactly the 2nd Amendment protects. Of course, it refers to "a well regulated militia", but that does not refer solely to an official body (such as the National Guard). In the 1700s, the militia consisted of every able-bodied man from ages 18 to (depending on where you lived) somewhere between 40 and 60. But the exact parameters have changed over time-women are now permitted in the military, enlistment begins at age 17, and the maximum age of a member of the armed forces is 75. So in the strictest possible sense, the 2nd Amendment protects the right of all citizens from age 17 to 75 to carry any form of weaponry (yes, this technically does include everything from knives to nuclear bombs). Also, the amendment itself describes what is meant by "the militia"-"the right of the people to keep and bear arms" is a descriptive phrase modifying the word "Militia"; the militia consists of "the right of the people to keep and bear arms", which is actually more universal than the (updated) historical interpretation.
It should also be remembered that the Constitution, while certainly a model for limited government, is far from perfect for fulfilling the Founders' vision (see the past 222 years), which itself was far from the libertarian ideal.
Published: June 2, 2009 11:19 PM
Leif Rakur
The purpose of the Second Amendment was to protect a right of the people from infringement by the new federal government. The people as a political community were guaranteed their right to continue providing militia service, a well regulated militia being necessary to their security. (The body of the people serving in the militia were said to "bear arms.") To make the Second Amendment applicable against the states, which maintined the militias, would be to turn history upside down.
Published: June 3, 2009 12:14 AM
Gil
Thinker, your supposition that a well-regulated militia could mean 'a group of one person' or well-regulated means 'self-regulated' is so ho-hum. Wouldn't it be easier to say gun ownership should be a 'natural right' and not dependent on the whim of anyone else or any government, especially those whose constitution doesn't have any 'right to bear arms' clause? Or to overthrow or repel government forces is a 'natural duty' as a government is not going to pass a law saying "you can shoot police and army officers without consequences"?
Published: June 3, 2009 12:33 AM
Thinker
It is worth noting that a military unit, whatever the original size, still officially exists even if its loses reduce it to one man (though it would be hastily reorganized). Therefore, the militia certainly can consist of one person. As for regulation, early colonial militias were first organized not at the order of the towns, but by individuals individually coming together for the common defense, and a position in the government, even that of "chief executive", did not guarantee command of the militia. Essentially, the militia was originally "self-regulated."
I am afraid I cannot answer for why the Founders did not use less opaque language. Things certainly would be a lot easier if they had more fully described what they wanted.
Also, it is very important that the letter of the law be what is respected, rather than the spirit, because the spirit is much more open to interpretation. The above discussions demonstrate how even striving to adhere to "original intent" can cause great discrepancies of interpretation. While I am not saying that the letter of the law is impervious to alternate interpretations, the differences of opinion caused can be easily solved simply by consulting a dictionary.
The Constitution has many, many problems, not the least of which is the ambiguity of its strictures. The Constitution several times refers to "due process", but never defines what "due process" actually is. A great deal went unsaid, but we cannot draw conclusions based on what might have been, however probable.
Published: June 3, 2009 1:34 AM
Marco
I suppose this sets a precedent that States are no longer bound by due process or being prevented from inflicting cruel and unusual punishment either, right?
At least the CIA doesn't have to rendition suspected terrorists overseas anymore. Baltimore will do just fine.
Published: June 3, 2009 1:39 AM
Thinker
Unfortunately, you are absolutely right. While the rules are officially in place, their meaning is subject to alteration by a mere five unelected judges. Due process, cruel and unusual punishment, and all the other subjects of the Constitution are arbitrarily determined. Personal restraint is all that has slowed the inexorable march toward totalitarianism (and we have at times come precariously close).
Published: June 3, 2009 2:00 AM
Chuck
The federal government was designed to enslave the recently liberated colonies. The constitution's purpose was to deceive people into believing the master (fed) was the slave to the people.
Published: June 3, 2009 2:35 AM
Andras
I would recommend Law, Legislation and Liberty by F.A.Hayek.
Published: June 3, 2009 5:18 AM
Gil
"Unfortunately . . ." - Thinker.
Or the 'Founding Fathers' weren't Libertarians after all, let alone lock people in a 1777 society.
Published: June 3, 2009 7:20 AM
Bob Brown
Here's an interesting discussion which sums it up very nicely:
http://sigforum.com/eve/forums/a/tpc/f/320601935/m/30910022/p/2
Published: June 3, 2009 10:44 AM
terrymac
Historically, the militia in America has been used to enforce federal tax-collectors' powers ( as in the Whiskey Rebellion ), and to break strikes. But what if the local citizens and workers had their own militia organizations? It seems likely that people would settle down to a more peaceful coexistence, much as the KKK and the Deacons for Defense did. Robert Williams made the point that the KKK were mostly bullies who would back down in a real fight. The same is likely to be true of strike-breakers and tax collectors, who expect and depend on our acquiescence.
Published: June 3, 2009 12:04 PM
Leif Rakur
With reference to Dan Fallon's comment on the 18th-century use of the word "regulated":
In 18th-century America, the phrase "well regulated militia" most often came up in the context of militia law and referred to regulation by law. Some state militia laws had the word "regulation" in their titles, as in Pennsylvania's militia act of 1780: "An Act for the Regulation of the Militia of the Commonwealth of :Pennsylvania."
Published: June 3, 2009 12:14 PM
G8R HED
"being necessary to the security of a free State"
Linguistics at the fore, it would be interesting to question the original intent of the word "State". It seems obvious, but not necessarily so, that as written and capitalized it refers to a political subdivision. Yet, could it not also be possible that the intent could be constured as being in a condition or "State" of freedom?
This would make more sense from an individualist point of view.
If the original intent was intended to be the political subdivision, "State", then it is possible for one to presume that the right may be collectively approved or disapproved - irregardless of it being an individual or 'collective' right.
Published: June 3, 2009 1:15 PM
Thinker
State only means a political subdivision in the modern sense. In the 1700s, and for as long as the term existed previously, "State" referred simply to the country/government. The Treaty of Paris, 1783 recognized the existence of 13 different "States" (the English minister who asked if he should send 1 ambassador or 13 was either asking an honest question or hadn't read the treaty his king had signed), and the Constitution was consolidating them.
The Constitution confuses the issue by referring to the states as "States", but giving no general term for the federal government. Also, the Constitution was in effect by the time the 2nd Amendment was tacked on, so "free State" could refer to the federal government just was easily as it could to Rhode Island, one of the holdout states.
But as soon as a state ratified the Constitution, it ceased to be a "free State" and was instead under the thumb of the federal government, so the phrase "being necessary for the security of a free State" seems like little more than a ploy to convince the holdouts that their rights were not being trashed (which they unquestionably were).
P.S. Gil-1787
Published: June 3, 2009 1:35 PM
Brutus
I agree with Chuck's comment, "The federal government was designed to enslave the recently liberated colonies. The constitution's purpose was to deceive people into believing the master (fed) was the slave to the people."
See Kenneth Royce's Hologram of Liberty for a more substantial argument.
Published: June 3, 2009 2:51 PM
BioTube
It's also wrong to infer anything from the capitalization - IIRC, every noun was capitalized like in modern German(which has been proven to improve reading comprehension in every language they've tested). However, we must remember that the Constitution always used the word "State", never "Province"; the only meaning possible within the language of the day(IIRC, it wasn't until after Lincoln's little war that "state" acquired the "subdivision" sense) is that the intent was a union of sovereign nations.
Published: June 3, 2009 3:48 PM
Gil
"Enslaving the States to the Federal Government"? I s'pose even if the States were rather close to the independence that some think that they should have then they'd be that local governments should have some sort of magical autonomy from the State Governments.
Published: June 3, 2009 7:40 PM