# If 2nd Amendment clearly did not guarantee private firearm possession....then what?
**URL:** https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922
**Category:** Great Debates
**Created:** [March 17, 2014, 3:35pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922 "2014-03-17T15:35:04Z")
**Posts on this page:** 19
**Page:** 1
### Author:  [@Sicks\_Ate](https://boards.straightdope.com/u/Sicks_Ate)
#### Post date: [March 17, 2014, 3:35pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/1 "2014-03-17T15:35:04Z")
Let’s say that the 2nd Amendment, instead of being a little “murky” on its intent, was very explicit and clearly understood.
Rather than guaranteeing the right to private firearm ownership, it was silent on that point. The text was very (very!) clearly preventing the federal government from barring or disbanding organized state militias.
At what point in history do federal laws begin to broadly outlaw private ownership of firearms?
Which guns are outlawed first?
What would crime look like in the US now?
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### Author:  [@Flyer](https://boards.straightdope.com/u/Flyer)
#### Post date: [March 17, 2014, 4:41pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/2 "2014-03-17T16:41:57Z")
Things probably wouldn’t be all that much different than they actually are.
Some states, at least, would simply pass a law saying, “All able-bodied males between 18 and 50 are hereby part of the militia.” (Note: current federal law is very similar to this.)
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### Author:  [@Sicks\_Ate](https://boards.straightdope.com/u/Sicks_Ate)
#### Post date: [March 17, 2014, 4:53pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/3 "2014-03-17T16:53:35Z")
Hm ok, I didn’t try hard enough to make the OP watertight…
So I’ll just rule that that scenario, for whatever reason, doesn’t cut it. Maybe the constitution defines a militia as an organized, uniformed group, where the members have assigned rank and drill regularly. And it defines regularly as at least once a month. Etc, etc.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [March 17, 2014, 5:21pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/4 "2014-03-17T17:21:45Z")
States are free to guarantee their own citizens’ right to carry firearms. They could still be prosecuted on federal grounds, but as we’ve seen in California and elsewhere recently such prosecutions are politically unpopular.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [March 17, 2014, 9:35pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/5 "2014-03-17T21:35:21Z")
How would your question differ if you asked “what if there is no second amendment”
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### Author:  [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)
#### Post date: [March 17, 2014, 9:51pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/6 "2014-03-17T21:51:17Z")
At some point, wouldn’t somebody invoke the 10th? Unless regulating private gun ownership is a specific power of the federal government, it’s reserved to the states, or the people?
I could picture Texas having very liberal gun-ownership laws (that is to say, no laws at all), while Massachusetts was very conservative.
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### Author:  [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)
#### Post date: [March 17, 2014, 10:21pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/7 "2014-03-17T22:21:20Z")
Ninja’ed by a Canadian … [hangs head in shame] … and I rooted for you last month …
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [March 17, 2014, 11:13pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/8 "2014-03-17T23:13:30Z")
> [@Sicks\_Ate](#):
>
> At what point in history do federal laws begin to broadly outlaw private ownership of firearms?
Since the 2nd never applied to the states, collectively or individually, until the recent Heller/Mcdonald cases, states were guaranteed (Guarantee Clause) and basically still are such, DEFENSE from invasion.
Article 4:
Section 4.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [March 18, 2014, 3:11am UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/9 "2014-03-18T03:11:59Z")
> [@Bryan\_Ekers](#):
>
> At some point, wouldn’t somebody invoke the 10th? Unless regulating private gun ownership is a specific power of the federal government, it’s reserved to the states, or the people?
>
> I could picture Texas having very liberal gun-ownership laws (that is to say, no laws at all), while Massachusetts was very conservative.
I can’t think of the last time the tenth amendment meant a damn thing in the face of reasonable federal legislation.
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### Author:  [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)
#### Post date: [March 18, 2014, 3:53am UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/10 "2014-03-18T03:53:22Z")
So?
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### Author:  [@Sicks\_Ate](https://boards.straightdope.com/u/Sicks_Ate)
#### Post date: [March 18, 2014, 12:54pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/11 "2014-03-18T12:54:35Z")
> [@Damuri\_Ajashi](#):
>
> How would your question differ if you asked “what if there is no second amendment”
Well since you ask, I don’t suppose it’s much different.
> [@Bryan\_Ekers](#):
>
> At some point, wouldn’t somebody invoke the 10th? Unless regulating private gun ownership is a specific power of the federal government, it’s reserved to the states, or the people?
>
> I could picture Texas having very liberal gun-ownership laws (that is to say, no laws at all), while Massachusetts was very conservative.
There are plenty of workarounds to 10th Amendment issues in evidence. It’s outside the scope of the OP anyway.
Whether state or federal regulation, when would firearms restrictions be enacted, and what would those restrictions look like?
How early in the history of the US would the ball being rolling? What major events would have spawned large-scale regulation?
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [March 18, 2014, 12:58pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/12 "2014-03-18T12:58:14Z")
> [@Bryan\_Ekers](#):
>
> At some point, wouldn’t somebody invoke the 10th? Unless regulating private gun ownership is a specific power of the federal government, it’s reserved to the states, or the people?
>
> I could picture Texas having very liberal gun-ownership laws (that is to say, no laws at all), while Massachusetts was very conservative.
The Tenth Amendment doesn’t actually mean anything in constitutional jurisprudence. It’s just invoked occasionally to support other arguments.
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### Author:  [@Abatis](https://boards.straightdope.com/u/Abatis)
#### Post date: [March 18, 2014, 1:59pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/13 "2014-03-18T13:59:32Z")
> [@Sicks\_Ate](#):
>
> Let’s say that the 2nd Amendment, instead of being a little “murky” on its intent, was very explicit and clearly understood.
>
> Rather than guaranteeing the right to private firearm ownership, it was silent on that point. The text was very (very!) clearly preventing the federal government from barring or disbanding organized state militias.
>
> At what point in history do federal laws begin to broadly outlaw private ownership of firearms?
>
> Which guns are outlawed first?
>
> What would crime look like in the US now?
I would expect military law to be different. The near field preemption enjoyed since _Houston v Moore_ by the federal government over the militia power of the states would have been altered if the 2nd was ever an immunity possessed by the states.
The federalization of the state Guards by the Dick Act (1903) and Militia Act of 1916 could have been repelled if the 2nd were a protection for the states against federal interference / assumption of state militia powers.
It stands to reason that state sovereignty would have been better staked out, rather than federal preemption or at least held off for a while.
As far as the arms of the citizen, state constitutions would be the framework of rights protections and I don’t think much would change. Gun control states (especially those without RKBA provisions, NY, NJ & CA) would be doing what they have done and states with expansive rights protections would do the same.
You should understand that for all intents and purposes the effect of the 2nd was just what your premise posits. The “militia right” and “state’s right” interpretations were inserted in the federal court system in 1942 and that essentially extinguished the individual right in many jurisdictions.
In California, their state courts (and the 9th circuit) embraced the various “collective right” interpretations (by lazily relying on those lower federal court opinions) and the myriad of CA gun control enacted in the latter half or the 20th century was upheld using that reasoning. Individuals challenging gun control were dismissed out of hand as having no standing to argue a 2nd Amendment claim as the 2nd only protected state interests.
_Heller_ slapped the lower federal courts back into the constitutional fold and invalidated the reasoning of _U.S. v. Tot_, 131 F.2d 261 (3 rd Cir. 1942) and, _Cases v. U.S_, 131 F.2d 916 (1 st Cir. 1942) and their illegitimate progeny.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [March 18, 2014, 2:33pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/14 "2014-03-18T14:33:13Z")
Wasn’t Heller the first case to construe the 2A to protect individual ownership of firearms? And even that case implied that almost any regulation short of an outright ban would be permissible.
I guess I think that the OP is describing what held true during much of our history. Some localities would ban firearms, but generally there would rarely be enough support to do so on a state- or nationwide basis.
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### Author:  [@Abatis](https://boards.straightdope.com/u/Abatis)
#### Post date: [March 18, 2014, 4:12pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/15 "2014-03-18T16:12:49Z")
> [@Tom\_Tildrum](#):
>
> Wasn’t Heller the first case to construe the 2A to protect individual ownership of firearms? And even that case implied that almost any regulation short of an outright ban would be permissible.
Don’t want to hijack but SCOTUS has never embraced any aspect of any collective right interpretation. In the first 2nd Amendment case, (_Cruikshank_) the Court recognized the “right to bear arms for lawful purpose” by individuals, (that of self defense against the KKK, exercised by two ex-slaves in 1873 Louisiana), . . . at a time when there was no state militia, Congress having ordered it disbanded (as the brutal enforcers of [**Louisiana’s Black Codes**](http://college.cengage.com/history/us/resources/students/primary/blackcode.htm)). Pick any one previous case you want, _Cruikshank, Presser, Miller_ or _Lewis_, they all endorse the individual right interpretation.
_Heller_’s primary constitutional action was to invalidate dozens of lower federal and state court opinions, anything reasoned on any aspect of the collective right theories, first showing in 1942 (mentioned in my previous post). This has in fact rendered infirm hundreds of gun control laws (California’s and New Jersey’s entire schemes are especially vulnerable).
As far as what arms are protected by the 2nd, _Heller_ followed the criteria set-out in _Miller_ but has placed more emphasis on “in common use”. As far as saying that _Heller_ “implied that almost any regulation short of an outright ban would be permissible”, you are over-reading / misreading it . . . by a lot.
> [@Tom\_Tildrum](#):
>
> I guess I think that the OP is describing what held true during much of our history. Some localities would ban firearms, but generally there would rarely be enough support to do so on a state- or nationwide basis.
Well, the 2nd did not bind state action until 2010. States were free to do just about anything; which they did during Reconstruction (Black Codes) which forced the enactment of the 14th which was pretty much gutted by SCOTUS in _Slaughterhouse_ (1873). That just left ‘due process’ which demanded a case by case examination which begot selective incorporation.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [March 18, 2014, 7:44pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/16 "2014-03-18T19:44:15Z")
> [@Sicks\_Ate](#):
>
> Well since you ask, I don’t suppose it’s much different.
Without the second amendment, I suppose our gun laws might look a lot more like Canada’s perhaps with a bit more permissiveness on the issuance of handguns licenses.
> [@](#):
>
> Whether state or federal regulation, when would firearms restrictions be enacted, and what would those restrictions look like?
Significant firearm regulation would probably have been enacted after the Civil War to disarm the Confederates. Only carpetbaggers and former slaves int eh south would have access to guns. The South would look very different today.
> [@](#):
>
> How early in the history of the US would the ball being rolling? What major events would have spawned large-scale regulation?
After the civil war, I suppose the rise of organized crime would have caused more regulation and at some point we would have somet6hing approaching what parts of Canada have.
> [@Tom\_Tildrum](#):
>
> Wasn’t Heller the first case to construe the 2A to protect individual ownership of firearms? And even that case implied that almost any regulation short of an outright ban would be permissible.
>
> I guess I think that the OP is describing what held true during much of our history. Some localities would ban firearms, but generally there would rarely be enough support to do so on a state- or nationwide basis.
Heller also struck down impediments to the immediate use of a gun (trigger lock requirments). The central premis of heller as far as I can grock it is that you have the right to effective self defense. The development of the law since then seems to be putting gun rights on the same judical track as free speech rights.
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### Author:  [@Lumpy](https://boards.straightdope.com/u/Lumpy)
#### Post date: [March 19, 2014, 2:01pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/17 "2014-03-19T14:01:56Z")
> [@Sicks\_Ate](#):
>
> Hm ok, I didn’t try hard enough to make the OP watertight…
>
> So I’ll just rule that that scenario, for whatever reason, doesn’t cut it. Maybe the constitution defines a militia as an organized, uniformed group, where the members have assigned rank and drill regularly. And it defines regularly as at least once a month. Etc, etc.
The problem is that the federal Constitution explicitly forbids states from having state armies. The third clause of Article One Section Ten reads:
> [@](#):
>
> No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
So if the states are forbidden from keeping “troops”, then just what exactly is a “militia”? At the time it meant the _posse comitatus,_ every able-bodied male civilian who could be summoned to arms in an emergency. The reason we’ve gotten in the habit of thinking of “the militia” as a military state body is because states gradually abandoned trying to train or drill the entire populace, and began relying on a “select” militia (what the 1903 Militia Act called the “organized militia”)- the handful of volunteers who trained on a regular basis and became the go-to’s when needed.
The premise of the OP is flawed because the militia were never _intended_ to be a permanently organized, uniformed and ranked group. That pretty much was considered the definition of “troops”.
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### Author:  [@Sicks\_Ate](https://boards.straightdope.com/u/Sicks_Ate)
#### Post date: [March 19, 2014, 7:18pm UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/18 "2014-03-19T19:18:57Z")
Great responses. See, no need to have a long thread in order to be informative.
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### Author:  [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)
#### Post date: [March 24, 2014, 12:36am UTC](https://boards.straightdope.com/t/if-2nd-amendment-clearly-did-not-guarantee-private-firearm-possession-then-what/683922/19 "2014-03-24T00:36:06Z")
> [@Tom\_Tildrum](#):
>
> Wasn’t Heller the first case to construe the 2A to protect individual ownership of firearms? And even that case implied that almost any regulation short of an outright ban would be permissible.
>
> I guess I think that the OP is describing what held true during much of our history. Some localities would ban firearms, but generally there would rarely be enough support to do so on a state- or nationwide basis.
Even if there had been, banning weapons any time after the West was “won” probably wouldn’t have had much effect on the history of the US. (Previous to that, as I understand it, those who were driving the frontier were quite happy to use arms to push the borders of the nation, regardless of national nor state support.) Guns really only serve two purposes, home defense and as a theoretic safeguard against tyranny.
In the latter case, FDR is probably the only president who could have tried to make a go at announcing himself President for Life, but I don’t think the presence of an armed electorate had anything to do with him not doing so. And of course [The Battle of Athens](http://en.wikipedia.org/wiki/Battle_of_Athens_(1946)) didn’t have a particularly meaningful result.
In the former case, intruders would still actively try to avoid discovery let alone conflict, they would/could still bring a knife or gun, and the home owner would still have every right to meet the intruder with a knife, thwompy-stick, or other means of killing another human being. Despite the magical aura that guns exude, human beings are sort of like big water balloons full of blood. You don’t really need tightly engineered, futuristic devices to kill them. So the dynamic between home invader and home protector really won’t be much different.