The paper that Bogus wrote was in 1998, so it’s not exactly fair to use Heller to specifically refute his positions. The reasoning in Heller, to the extent it was available in 1998, would be fair to employ to argue against the 1998 Bogus.
I brought up Bogus’ interpretation of Miller as a way to assess his analysis because I’m familiar with Miller but it has been some time since I read the paper that Bogus wrote. The idea being that if Bogus was misguided in his interpretation of Miller, then that reduces his overall credibility.
There are legal errors that should reduce credibility. Someone who thinks the Supreme Court has only applied the First Amendment to Congress should take a hit to their legal credibility. But incorrectly predicting a highly controversial 5-4 Supreme Court decision is not something that should damage credibility.
If all you’re saying is that Bogus is as bad a legal analyst as four United States Supreme Court Justices, then you’re not saying much about his legal prowess! Certainly you’re not saying enough to be able to reject his opinions outright without engaging them on substance.
As the OP, I ask that you not ascribe motives to me that I have expressly disclaimed.
The genesis of this Thread was my attempt to understand the words, “A well regulated militia, being necessary for the security of a free state…” since it seems superfluous to the basic right to bear arms that the 2nd amendment provides. The amendment could just as easily have enshrined this right without this unnecessary verbiage; it was mentioned upthread that other proposed amendments were streamlined to make them more concise. Why not this one?
And to avoid accusations like your own, I have expressly assured the Dope that this is not an argument for gun control, and that I do believe that the 2nd amendment clearly provides a right to own guns.
Rather, this was a debate about the historical context of the clause.
And my conclusion was that it was an assurance to the states that they would be empowered to suppress insurrections and defend against outside meddlers without regard to the federal government, and that this was a necessary assurance because it reflects the existential fears of the slave holding states.
I see one of the biggest challenges to my thesis is that the right to bear arms exists elsewhere, including in non slave-holding states. To this I have 2 replies:
Some of the examples mentioned post-date the U.S. Constitution. It is entirely possible that they are merely following the example set by the federal constitution, and don’t represent proof of its origin.
More broadly, the examples given are notable because they don’t include the preface that I am seeking to address. If it was such a universally acknowledged right, why did the framers feel the need to include a rationale?
Now, having read through this entire thread, I am willing to accept that the importance of a state level militia does extend beyond the threat of slaves. But I still feel pretty assured that this need to have access to arms to ensure state-level subjugation of slaves, without fear of federal neglect or reprisal, was a key motivation for the amendment, and does help to explain the militia reference.
The “Bogus” position is not grounded in Cruikshank, Presser or Miller. The Bogus position was inserted in the federal courts in 1942, set out in US v Tot; that the 2ndA was not written with any individual rights in mind but only as a barrier to federal government interference with state militias.
Scalia didn’t need to unearth any new 2nd Amendment theories to invalidate that perversion and ‘find’ the individual right . . . the individual right with no militia conditioning has been evident in all SCOTUS opinions on the right to arms and 2nd Amendment (two separate and distinct things).
That particular paper made no waves in the legal or academic realms when first published; it was among many other anti-gun pieces written in the late 90’s trying to push against the legal and academic wave of the individual right model. It has found recent attention because Thom Hartmann wrote an article resuscitating it back in 2013.
It hasn’t stopped being useless fiction.
His credibility is zero because he needs to begin his arguments with a lie.
He often states the Supreme Court has, “on each occasion held that it granted the people a right to bear arms only within the militia”.
This is the foundational flaw in any collective “interpretation” of the 2nd and it is expressly contradicted by SCOTUS in all its 2nd Amendment explanations.
This misrepresentation is of course required by collective right promoters because if they can first establish that the right to arms is “granted” by the 2ndA then their arguments making the right dependent upon the words of the Amendment, have plausibility.
Bogus has never enjoyed any legitimacy.
*Heller *re-re-re-affirming what SCOTUS has always said, invalidating all permutations of any collective right theory, only states what was always true.
When Bogus states that when speaking on the 2nd Amendment the Supreme Court has, “on each occasion held that it granted the people a right to bear arms only within the militia”, is he being factual or is he in error?
Can such an egregious error in the philosophical, historical and legal foundation of the right to arms be seen as anything but a purposeful attempt to deceive?
The provisions of the Bill of Rights began as proposals from various states.
Most states had right to bear arms provisions in their own constitutions.
Most of those state provisions grouped a couple different aspects of military force into one provision . . . These provisions usually have three prongs:
a) The citizens retained the right to arms
b) standing armies in time of peace were dangerous to a free state and not to be maintained
c) the military should always be subordinate to the civil authority.
Here are some examples of state provisions that were in force during the enactment of the federal Constitution and the Bill of Rights:
1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. . . .
**1777 Vermont**: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
**1780 Massachusetts**: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
**1790 Pennsylvania**: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.
The separate prongs of these directives were never considered interdependent (that all must exist for any to be actionable, i.e., that if a standing army does exist, the right to arms of the people doesn’t).
Actually, it is clear that the standing army declarative clauses can never actually be brought to fruition. They are merely declarations of inactive principle. It can’t possibly refer to state action because the states are forbidden to keep troops by the federal Constitution and it certainly can not be interpreted to prevent the federal government from exercising its supreme Art I, § 8, cl’s 11, 12, 13 & 14 powers.
Considering that the wording of the 2nd Amendment was drawn from similar proposals and the framers were well accustomed to such constructions, one can’t ***really ***say that the 2nd Amendment is unique or clumsy, ambiguous or confusing without announcing their ignorance or lack of understanding of contemporaneous provisions.
The declaration in the federal 2nd Amendment, “[a] well regulated Militia, being necessary to the security of a free State” is inextricably meshed (philosophically) with, “as standing armies in time of peace are dangerous to liberty, they ought not to be kept up.” To the framers each represented the same sentiment . . .
The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).
So, without a doubt, the inactive, dependent declaratory clause can only be said to be a statement of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right; it only states one reason (the political one) for why the fully retained right is being forever shielded from government interference.
As has been pointed out, the original reason for ‘right to bear arms’ clauses in state constitutions wasn’t limited to slave states, nor any historical reason to think invasions of freed or runaway slaves from far off states was a common fear. And even in slave states there were myriad other threats besides slave uprisings. So the basic hypothesis is nonsense.
However, the general debate about the federal second amendment in modern times is partly related to the social fallout of the slave system and its aftermath. Since the 20th century there’s been a heavy skew in violent crime toward black perpetrators (though it wasn’t always so even post slavery, see Roth in “American Homicide”). A significant element of the populist v elitist (which it is often more what it’s about than right/left strictly speaking) debate about guns is who has to actually face violent subcultures (including the many law abiding members thereof) and who sits in the many generally whiter areas of the US where violent crime is more like the rate in ‘civilized’ Canada, Northern Europe etc and points out how ‘unnecessary’ guns are, or other than for hunting.
And perceptions surrounding that divide, since everyone has seen cases where people with the view that internationally relatively high US violent crime is caused by guns sometimes live in the same neighborhood as those who feel it’s the reason they need guns. But a racially skewed rate of violent crime is an underlying fact, even if you argue it doesn’t logically follow through to a person ‘needing’ a gun or particular type of gun, and there’s also differing philosophical views on the relationship between ‘you don’t need’ and ‘50% plus one can say you can’t have’.
Just one question: since when have people been putting forth the argument that militias were for keeping the slaves in line? It would be one thing if commentators had been saying such a thing all along; but AFAIK, no one ever claimed such a thing before about ten years ago.
The article that the OP is based on was one in a deluge of law review articles and echo-chamber symposium pieces that erected castles in the sky in the 90’s to try to disprove the individual right interpretation. They stuffed every bag they could find with whatever BS they could think up and threw it on the wall.
Bogus is among the many anti-individual right “intellectuals” (along with Saul Cornell, Adam Winkler, Jack Rakove, Michael Dorf, Paul Finkelman, Erwin Chemerinsky) who carried anti-gun water promoting various and assorted “militia right” and “state’s right” and the general catch-all, “collective right” interpretations of the 2nd Amendment. Bogus has in fact given up writing on guns and moved onto economic issues and general conservative bashing.
It has been funny to watch the theories promoted by these guys continuously de-evolve as the legal support for them has been stripped away in academia and the courts, and now are mere shells of their original positions.
Before they said “MILITIA RIGHT” or “STATE’S RIGHT” – NO INDIVIDUAL RIGHT! but now they say a “conditioned” individual right exists. Citizens have the right to own a gun but CAN only use it serving in the militia, LOL.
They remind me of the Black Knight in Monty Python’s Holy Grail.
Page 344, there’s quite a bit of inference being relied upon regarding the underlying motivations. Take this passage: Even before a white audience in the South, matters involving slavery and slave control were considered sensitive and were often raised in muted and oblique ways. But such matters could never be far from the minds of all those present at the Richmond Convention. As Conor Cruise O’Brien notes, “even where the word ‘slavery’ was not specifically mentioned, the fact of slavery must have been subliminally pervasive in the whole debate over ratification.”
That’s quite a leap. Yes of course slavery was a pervasive issue in the south and all the colonies, but to conclude that it was some primary motivator but all of this motivation is cleverly hidden is not supported. It’s also undermined by the later quotes from 349 and 352. Henry directly mentions slavery, not in muted or oblique ways.
In addressing the collective right theory, Bogus begs this question repeatedly. On page 364 he states that MA and NC constitutions guaranteed a collective right only. But this isn’t accurate. Perhaps it’s debatable what “the people” means in the MA constitution, but simply stating that this is a collective right only glosses over that debate. That’s sloppy at best. Not only this, Bogus also erroneously uses the construction whereby the constitution is granting rights, rather than recognizing them. This has never been true with respect to the right to arms. This is a legal error.
Then we get to Bogus’ discussion about the slavery aspects of the 2nd amendment. While a bill of rights were immediately taken up after the ratification of the constitution, the acceptance of that BoR was not a forgone conclusion. Many of the ratifying states submitted potential amendments and few were enacted. That the constitution had its requisite number of states ratifying well before the 2nd amendment was offered undercuts the idea that the 2nd amendment was some kind of tradeoff for a state to ratify the constitution. Virginia ratified without it. New Hampshire ratified without the 2nd. Sufficient numbers of states ratified the constitution without the 2nd amendment. To construct the scenario where the 2nd Amendment was a “sale job”, at least some evidence would have to be presented. The timeline just doesn’t work for that scenario. The premise of the OP falls apart on the timeline.
Bogus continues to recognize that there is little direct evidence to support his theory, yet simply handwaves this away. Bogus writes:
“These were games of masquerade and innuendo. No one’s purpose was served by laying cards upon the table. The history of the Second Amendment was hidden by design.”
He concludes with this:
”These factors may have combined. That is, to the extent that express statements about slave control were made at ratifying conventions in the South or later in the First Congress, stenographers may have considered it both politic and convenient to abbreviate or omit those remarks.”
If a claim were made today based on that reasoning, it’d be dismissed as a conspiracy theory. It’s also contradicted by the amount of discussion that Henry and others had specifically referencing slavery. Yes of course slavery was a concern for the south and all the colonies. But to say that it was the hidden reason for the 2nd amendment is a giant stretch.
Here is how Bogus concludes:
All of these conclusions range from suspect to wrong. While some members of the Virginia and other delegations may have wanted a more robust restriction on the federal government, this doesn’t support the idea that the 2nd amendment was a tradeoff for slaveholding states to ratify the constitution. Bogus continues his question begging stating as conclusion that the amendment dealt seemingly exclusively with militia service. He also misconstrues the term “regulation”. Further, there is no collective right as he indicates, and at SCOTUS this has never been so.
In the second paragraph, in discussing the slavery issue, this falls squarely in what Bogus calls the second realm of politics, public policy, and popular culture. This is instructive because he is distinguishing what he characterizes as the realm of law.
Bogus argues that there was no common law right to keep and bear arms, and that the English Bill of Rights, when it states “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”, could only have been an attempt to limit the King’s power to disarm the people in favor of the power of Parliament to disarm the people. He also claims that the American Framers of the U.S. Constitution–and James Madison in particular–must have agreed with him.
As David B. Kopel notes in “The Second Amendment in the Nineteenth Century”, this is an unlikely reading of the English Bill of Rights; granted that–as Kopel notes–in a regime of parliamentary supremacy any “bill of rights” can be little more than a mere “moral statement” with no power to entrench any future protection of such a right; nonetheless the 1689 Parliament, in passing the English Bill of Rights, wasn’t objecting to some extra-Parliamentary decree by the King, but to the King’s enforcement of laws enacted by previous Parliaments–that is, the 1689 Parliament was seeking to mount at least some kind of defense of an individual right (not just a protection of a parliamentary prerogative). Also, Madison did believe that the English Bill of Rights protected individual rights (though one might say not very effectively).
Nonetheless, Bogus’ assertion that the English Bill of Rights limited the King rather than Parliament is true enough, as Madison himself noted in his Introduction of the Bill of Rights:
But it’s overwhelmingly obvious that Madison (and the other Framers of the U.S. Constitution, and the framers of the several state constitutions) pretty definitively rejected this “parliamentary supremacy” model of government in favor of written constitutions (at both the state and federal levels) and limitations on the powers of even duly-elected republican legislatures (again, at both the state and federal levels). As Madison put it:
According to Bogus
Somehow, Bogus takes what American political thinkers clearly saw as a bug, not a feature, of the British system–parliamentary supremacy–and uses that to claim that when Madison, Congress, and the state legislatures sought to entrench a particular set of individual rights against even a duly-elected republican legislature (the United States Congress), they were really trying to guarantee that individual rights (or at any rate, one of those individual rights) would be subject to “parliamentary supremacy” at the state level, rather than straightforwardly trying to limit the power of the federal government to infringe on that individual right.
Granted that before the Fourteenth Amendment the Bill of Rights was a limitation on the powers of Congress, not of the states, it would be very odd indeed to read the Eighth Amendment as guaranteeing that only the states should have the power to “inflict cruel and unusual punishments”. But somehow the Second Amendment–and only the Second Amendment–should be removed from the American context in which the U.S. Constitution’s Bill of Rights is a set of enumerated and entrenched limitations on the powers of the legislature in order to protect the rights of individuals, and returned to a seventeenth-century English conception of parliamentary supremacy (but now at the state level).
Well the modern concept of Parliamentry supremacy under English law as understood today was not the same as in 1688 nor in 1789. Nor was the idea of constitutional monarchy established. In 1689 the Declaration would have been seen as entrenched. It would have been binding on the Monarch, both as a restriction on his powers and as a positive duty for him to refuse assent to any Bill which altered the it. To fail to do so would be a violation of his Coronation Oath. At the time several provisions were held to be entrenched. Most notably the Magna Carta.
And the historian in that article is saying you are wrong and that anti-gun folks have to stop race peddling because it just makes you look like race peddlers.
I don’t buy this explanation of the Second Amendment for a moment.
But suppose it’s true. Suppose the original purpose of guaranteeing the right to bear arms was to allow slaveowners to quell rebellions.
What does that imply? That the right no longer exists? That the amendment is invalid because oh don’t like the reason it was adopted?
Spell it out: what would it mean if slavery WAS the reason we were guaranteed the right to ownguns?
Unfortunately, the OP and the various posters arguing the “slavery purpose” or “militia right” or “state’s right” theories of the 2nd Amendment have apparently resigned from defending their positions and have abandoned the thread.
Nope. Just tired of repeating myself; my goal was not to make a gun control argument, and I didn’t get this idea from somebody else. Notwithstanding the historical context of the amendment, I believe that the 2nd Amendment does, in fact, guarantee the right to bear arms.
I will admit, however, that I am shocked by how sensitive gun enthusiasts can be anytime their favorite amendment is disparaged.
So, if someone starts a Great Debates thread arguing that the purpose of the Free Exercise and Establishment Clauses of the First Amendment were really to guarantee that the United States would remain a (Protestant) Christian Nation, we should all just smile and nod and say “Gosh, I bet you’re right! After all, you quoted some people on the Internet or somewhere who made that argument!”
Nope??? You didn’t resign from defending your positions and you didn’t abandon the thread, you just got tired of debating and stopped posting?
Note that I directed three posts to you that remain ignored and my first, #56, makes a different argument than any presented in this thread – asking you where the legal presence of your theory is, protecting state militia activity.
But any theory that the 2nd Amendment “gives” anything to anyone (or entity, e.g., a state) disparages the retained rights principle. It is a theory that seeks to denigrate the rights merely recognized and secured (not granted) by the Constitution – thus it is a gun control enabling argument.
Wonderful.
The “history” of the Bill of Rights you set-out in the OP is wrong. I would suggest you read Madison’s introduction of the proposed amendments and note how he describes the rights being secured, where he wanted the provisions added to the Constitution and his explanation of Federalist opposition to a federal bill of rights.
Additionally, your understanding of the origin and intent of the 9th and 10th Amendments seems divorced from their origin, the Federalist / anti-Federalist debate over adding a bill of rights.
I think that’s because you don’t really understand what the 2nd Amendment does (and more importantly, what it doesn’t do). When placed within the rights framework the founders / framers were working in, the invention of this operation for the 2nd Amendment is just modern SJW reverse engineering and manufacturing of even more ignorance of foundational principles. It is just another campaign in the modern left’s war on the Constitution.
I would imagine you to be even more shocked if you were to learn that my and your RKBA is not in any manner dependent upon the 2nd Amendment for its existence.