Towards a Jeffersonian Appraisal of the SCOTUS "D.C. Gun Ban" Decision

Towards a Jeffersonian Appraisal of the SCOTUS "D.C. Gun Ban" Decision
Matthew J. Bell June 29, 2008

The recent Supreme Court decision in the case of the District of Columbia v. Heller has been hailed by the likes of Bob Barr as a milestone for "liberty,"1 and "gun rights advocates" consider the decision to be a major victory.2 Commentators, echoing Justice Stevens' dissent, have acknowledged that the decision leaves lingering questions about the details of allowable gun restrictions.3 It seems, however, that most "gun rights advocates" have largely ignored (or are unaware of) the questions (some of which were not directly posed in the case) that the majority opinion does answer - whether implicitly or explicitly; particularly those questions that are pertinent to the scope of the function of the citizens' militia. Inspection of Justice Scalia's majority opinion might leave one to wonder both about whether the framework of liberty assumed by Barr is the same framework that the founders assumed, and, indeed, about whether this supposed gun rights victory is a victory at all.

It is true that the decision was focused most obviously upon the question of whether the Second Amendment protects the right to keep and bear arms for the purpose of home self-defense.

"Whether [the Second Amendment]...protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case." (District of Columbia v. Heller, 554 U.S. ___ (2008), p. 68, http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf)4

Hence, the decision did not specifically address a question such as: What is the scope of a citizens' militia? Indeed, the case did not really even address a question such as: What is the scope of home (or personal) self-defense? However, the majority opinion plausibly has implications for these unaddressed questions - implications that are (or, in our opinion, ought to be) deeply troubling to those (if any there be) who might wish to implement today a citizens' militia modeled after the founding-era citizens' militia.

To put it somewhat artfully, it might seem that the recent Supreme Court decision, had it been handed down in the founding era (per impossibile), would have provided the basis for outlawing the founding-era citizens militia. If this is a credible charge, however, then it is unlikely that the decision really is a victory for "gun rights" (at least as the founders conceived those rights). Moreover, it is plausible that the concept of "liberty" embraced by those who praise the decision is a departure from the concept of liberty that the founders held.

This article shall focus narrowly upon what we are calling a "Jeffersonian" reaction to the decision - i.e., the articulation of a reaction framed around quotations from Thomas Jefferson on what are judged relevant matters. Hence, this article shall not be anywhere near an exhaustive treatment of the opinions of the founders, broadly construed. Additionally, while this article moves toward a Jeffersonian response, it will not pretend even to have attained completeness in that limited task.

Let us begin with the suggestion that, for Thomas Jefferson, keeping and bearing arms was not merely a right, it was an obligation.

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to John Cartwright, 1824 (italics added).5

Immediately, then, one finds an asymmetry between the founding-era notion of "gun rights", at least as it finds expression in Jefferson, and the contemporary notion. For, in contemporary parlance, "gun rights" are the peculiar concern of hunters or "survivalists" or "self-defense enthusiasts". In other words, "gun rights" are largely the concern of a special interest group that is a subset of the citizens of the United States.6 From Jefferson's statement, however, we see that this conception plausibly would have been quite alien to him. For, with the exception of certain religious pacifists, Jefferson seems to have regarded it as incumbent upon good citizens in general to be armed. Furthermore, he appears to have regarded it as incumbent upon armed citizens to be available to their neighbors in the citizens' militia.

For, in general, Jefferson held that:

"...the militia of the State ... is ... every man in it able to bear arms." --Thomas Jefferson to A. L. C. Destutt de Tracy, 1811.

The Supreme Court adopted this opinion in 1939:

"…[T]he Militia comprised all males physically capable of acting in concert for the common defense" (US v. Miller, 307 US 174, 179 (1939)). (p. 25)

Participation in the citizens' militia was an essential component of the Constitutional bulwark against tyranny; and it was requisite that militiamen keep and bear their own arms. Appreciating this demands that we call to mind the various purposes for which the citizen's militia could be summoned: (i.) to act as the first line of defense against foreign invasion;7 (ii.) to put down domestic insurrection;8 and (iii.) to resist the usurpation of the domestic government.9

Of course, a contemporary observer might weigh the various possibilities (threat of invasion, threat of insurrection, and threat of usurpation) differently from other observers.10 The assignment of such subjective probabilities, after all, is dependent upon one's awareness and appraisal of relevant background information; and such awareness varies and such appraisals are partially pragmatic affairs (i.e., they are affairs that are relative to an observer's interests, needs, and desires, etc.). Nevertheless, we may still (and would do well to) ask how well any contemporary citizens' militia would fare in the service of the three mentioned activities. We assume that, however likely any of the three tasks might be thought to be, nonetheless, likelihood or unlikelihood by itself does not change the fact that the citizens' militia (if the founders' conception of it is to be maintained) should be capable of addressing itself to any of the three threats. To assess these matters, we must ask what conditions would need to be satisfied in order for the citizens' militia to function successfully in each of its intended roles. Again, we will not treat these matters exhaustively but will merely hint at the sorts of considerations such an assessment would involve.

For example, with respect to foreign invasion, Jefferson comments:

"Uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point and competent to oppose them, is the body of neighboring citizens as formed into a militia."
-Thomas Jefferson: 1st Annual Message, 1801.

Hence, we see that, in order to effectively repel a foreign invasion, the citizens militia (i.e., "the body of neighboring citizens") must be such that it is (i.) a "force which can be ready at every point" and (ii.) a force which is "competent to oppose" the enemy.

Are contemporary citizens ready and able to be fashioned into such a force? Apparently not. But, the more pressing question for our purposes is this: Supposing, for the sake of argument, that contemporary citizens suddenly were seized upon by Jeffersonian impulses, would the Supreme Court decision in D.C. v. Heller allow them to fashion themselves into such a force? Let us postpone venturing an answer to this question until further on.

Given the circumstances of the revolution and the history of the founding of this country, we can hardly suppose that the founders thought that the threat of domestic tyranny was far-fetched.

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."
-- Alexander Hamilton, Federalist No. 28, http://www.yale.edu/lawweb/avalon/federal/fed28.htm

To be sure, the founders saw themselves as engaged in the process of drafting a government that would be, by its very design, difficult to usurp.

"The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them."
-- Hamilton, Ibid.

But, this hardly implies that the founders thought that the militia's third purpose, as stated above, was either superfluous or unnecessary. On the contrary, the armed citizens' militia was itself an important protection against domestic tyranny.

"The importance of [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. … The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
-- Joseph Story, Commentaries On The Constitution Of The United States; With A Preliminary Review Of The Constitutional History Of The Colonies And States, Before The Adoption Of The Constitution. Boston: Hilliard, Gray And Company. Cambridge: Brown, Shattuck, And Co. 1833. http://www.constitution.org/js/js_000.htm

But what is necessary in order to function effectively to resist usurpation of the domestic government? It depends, of course, on the nature of the threat. If, for example, the domestic government - against the advice of the likes of Jefferson11 - has chosen to maintain a standing army; and if the usurpers are in command of that army; then, surely, successful resistance would require, at the very least, some measure of parity with respect to weaponry and training.

According to Justice Scalia, however, such parity is not part of the court's conception of the Second Amendment. For, with respect to weaponry, in Scalia's opinion, only those weapons which are in common use amongst law-abiding citizens fall under the umbrella of protected "arms". This, he says, follows from the historical fact that, during the founding era, the following obtained:

"[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." (From U.S. v. Miller, qtd. on p. 55)

Hence, while Scalia admits, for example, that it might be very difficult for a militia to repel bombers and tanks and, one might add, trained cadres of machine-gun-toting troops without, say, M-16s of one's own, nevertheless, Scalia merely judges that the "prefatory" and "operative" clauses of the Second Amendment have grown apart over the years.

"It may be objected that if weapons that are most useful in military service - M-16 rifles and the like - may be banned, then the Second Amendment right is completely detached from the prefatory clause. However, as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and (p. 58) tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." (p. 59)

There is apparently nothing that the court can do to guarantee that a contemporary citizens' militia should be effective at repelling invasion or thwarting tyranny - military technology has simply gone beyond the founders' wildest conceptions; and we now have a standing army, contrary to many of the founders' wishes. Well, so much the worse for the effectiveness of a citizens' militia! The citizens simply cannot prepare, according to the Court, to defend against the possibility that the government might one day wield its army as an instrument of oppression.

The force of Scalia's "cannot" seems unclear in his sentence, "the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." One wonders how copyright law might have been held up if a similar story about static rights in the face of dynamic technology had been told about, say, digital recordings. Somehow, I doubt that, say, the RIAA would have accepted that such technological advancement was so much the worse for copyright law. And, lo! Copyright has been updated to preserve its spirit of protection. Apparently, however, the spirit of what the citizens' militia was intended to protect is doomed to languish and die. It is the relic of a bygone age where "the degree of fit" between a prefatory and operative clause was much tighter than it is today.

But to Scalia - apparently - this is idle. There is no problem, for the citizens' militia is largely passé anyway. For, even if we set aside the issue of disparity of weaponry between any hypothetical, revived citizens' militia, we find another likely impediment:

"Presser v. Illinois, 116 U.S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade 'bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.' …" (p. 51) "Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations." (p. 52)

Thus, even if we suppose that, a Jeffersonian impulse sweeping the land, people get it into their heads to fulfill their duty to be armed and, in turn, begin to appreciate their correlative duty to make themselves available for a revived citizens' militia, we nonetheless find that, should these people desire to meet together, perhaps to train in the use of their "common arms," they may be labeled a "private paramilitary organization" and find themselves barred from doing so.

Hence, the well-regulated militia may not just be passé, but, should the mood strike the States, it may be prohibited as well. For, nothing Scalia writes draws any distinction between a citizens' militia and a "private paramilitary organization". Moreover, in fact, Scalia admits: "…no one supporting [the individual-rights interpretation of the Second Amendment] has contended that States may not ban such [paramilitary] groups" (p. 51).

Of course, it may be true that no one who is presently "supporting [the individual-rights interpretation of the Second Amendment] has contended that States may not ban … [paramilitary] groups", but it is hardly true that no voice has contended that such a ban would be Unconstitutional. Scalia provides the following quotation from William Rawle:

"...No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment [the second amendment to the constitution] may be appealed to as a restraint on both." (p. 37)

Justice Stevens' argument tries to predicate "gun rights" upon militia membership. And, hence, "sportspersons" and "gun aficionados" count Scalia as an ally because Scalia recognizes a "gun right" that is independent of militia membership. Scalia's commentary, here, is representative of the thrust of his case against Stevens:

"Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service." (p. 47)

But, disconnecting militia membership from the operative Second Amendment protections seems chiefly construed as a blessing to those who think that the avoidance of militia membership is a boon. Insofar as militia membership is considered an unnecessary burden to lay upon Americans, predication of "gun rights" upon militia membership is considered an arbitrary restriction, imposed simply in order to reduce the number of those eligible to keep and bear arms. But, if one has a more Jeffersonian attitude on the matter, one sees that while it is correct to say that one does not obtain "gun rights" in virtue of one's militia membership, nevertheless, the ability to join into a citizens' militia together with one's armed neighbors is itself an important right. Indeed, if we take Jefferson's gun-possession-being-a-duty comment seriously, we may well infer that membership in a citizens' militia is itself a duty. It is not, to be sure, the precondition of keeping and bearing arms; but, nonetheless, it is a main reason for the importance of keeping and bearing arms. Hence, membership in a citizens' militia is no more burdensome than are other crucial ways in which the citizens were intended to participate in their government (e.g., participation in electoral processes), and it is no less essential to maintaining our liberties.

To put the matter another way, the separation of "gun rights" from militia membership in the present Court ruling, seems to cut two ways. Most of the focus heretofore has been upon the Court's "allowance" that non-militia members keep and bear arms. And, indeed, as we have admitted, it is right to acknowledge that "gun rights" exist independently of militia membership. However, some of the phrases in the present ruling also seem to imply, if not expressly to state, that a contemporary citizens' militia would be disallowed. In other words, the Court seems to be of the following opinion. It is the case that both one may, but need not, keep and bear arms, and that militia membership is strictly unnecessary (perhaps because it is thought - erroneously - to be superfluous given our standing army and police forces), and, if the States so decide, may be prohibited (if, that is, the States construe any militia-like organizing as the stirrings of a "private paramilitary organization").

From a Jeffersonian perspective, however, this opinion would be wrong on at least two counts. First, keeping and bearing arms is both a right and a duty, such that, in light of the founder's intentions, the Second Amendment urges citizens to arm themselves as opposed to merely "allowing" for the possibility that they might. And, second, the citizens' militia, being an important protection against coercive governmental force, is far from superfluous or unnecessary given our standing army (and police forces). But, in fact, given the existence of our standing army (and police forces), the citizens' militia should be viewed as more crucial to the survival of our liberties than such a militia would be if the United States had no standing army (and no police forces, or, at least, much reduced police forces) at all.

To reiterate: The Court is correct to acknowledge that keeping and bearing arms does not depend upon militia membership. But, the Court errs, in our view, in de-emphasizing the importance of the citizens' militia. And, the Court errs severely in undercutting the ability of such a militia to exist in our time, to the extent that it does so, insofar as such a militia is arguably more important in our time than it was even in the time immediately following the founding of our country, when such a militia was more or less fully operational.

And, so, Scalia seems to have done damage to the important - if atrophied - institution of the citizens' militia. But, things may even be worse than this. For Scalia seems to hint, and not too subtly, that even the protections that he has acknowledged, and is credited for championing, are tenuous and may be "outmoded".

Justice Scalia writes:

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." (p. 67)

Above, we have what appears to be a rather puzzling statement from a supposed champion of the Second Amendment. This defender of "gun rights", unless I have badly misunderstood what seems to be a fairly straightforward text, evidently believes that the notion that the Second Amendment is, after all, "outmoded" is "debatable".

Has, then, the bulk of Scalia's opinion, ostensibly in favor of a (truncated) right of "self-defense" been for nothing?

Here, we get to a most disturbing point. For, while Scalia announces that it is no business of the "Court to pronounce the Second Amendment extinct" he seems to think that it is the Court's business to pronounce the citizens' militia extinct; and to pronounce the founding-era conception of "self-defense" extinct;12 and to pronounce extinct as well the danger, so palpable to the founders, that a standing army could be perverted into a tool of oppression.

If only a Court could guarantee freedom from such a danger! But, alas, surely no pronouncement, legal or otherwise, can protect the people from the ambitions of would-be tyrants. Does Scalia pretend to assure us that 21st century citizens face no threat of oppression or suppression of our liberties and no danger of the usurpation of government? Our founders warned us to be eternally vigilant. Scalia, apparently, has a dissenting opinion. But, fortunately for us, our heritage, as it was bequeathed to us by our forebears, was not a heritage of empty promises. Our legacy was a legacy of practical measures designed (and tested) to ensure that the people would ever have the tools to thwart would-be oppressors. Unfortunately for us, however, even many of liberty's supposed champions betray our legacy, and work to subvert it.

In the end, then, perhaps whether one considers Scalia to be a defender of the Second Amendment or not depends upon the probability that one assigns to the eventuality of the usurpation of the domestic government. If one thinks that such a possibility is too remote to be credible, then Scalia will be received as a champion of liberty. If, on the other hand, one shares with the founding fathers a skepticism of the trustworthiness of persons in positions of power and a general distrust of governments, then Justice Scalia might rather seem to be an ensign of usurpation.

For our part, we side with the founders. And, hence, from a Jeffersonian perspective, we feel that we must pass a most unfortunate verdict: This recent Court ruling does more to weaken our liberties than to protect them.

ENDNOTES:

1 More exactly: "The ruling ‘will go down as one of the Supreme Court's most important rulings on behalf of liberty,' says Libertarian Party presidential candidate Bob Barr," qtd. at: http://www.bobbarr2008.com/press/press-releases/36/bob-barr-calls-heller-decision-on-gun-rights-%e2%80%9cone-of-court%e2%80%99s-most-important-rulings-on-behalf-of-liberty%e2%80%9d/.

2 Apparently, some so-called gun control advocates are claiming victory as well: "Leading gun-control advocates, such as the Brady Center, are already spinning Heller as a victory: They claim the gun-rights lobby's strength is based on stoking the public's slippery-slope fears that any gun regulation is a forerunner to a total ban. With that ban now impossible, gun-control advocates believe they'll have more ability to restrict sales, possession and carrying in ways short of prohibition", Brian Doherty, "The gun-rights fight isn't over: Self-defense is upheld, but control advocates aren't done by a long shot," LA Times, June 27, 2008, http://www.latimes.com/news/opinion/la-oe-doherty27-2008jun27,0,2867559.story.

3 "In a dissent, parts of which he read from the bench, Justice John Paul Stevens said the court left for future cases the formidable task of defining the scope of permissible gun regulations," James Vicini , "Americans have right to guns under landmark ruling," Reuters, Additional reporting by Jeremy Pelofsky; Deborah Charles and David Wiessler, Eds., http://news.yahoo.com/s/nm/20080626/us_nm/usa_guns_court_dc.

4 Hereinafter, where only page numbers are given, the citation should be assumed to be D.C. v. Heller.

5 In the main, we obtained the text of our Jefferson quotations from the following website: http://etext.virginia.edu/jefferson/quotations/jeffcont.htm.

6 By "concern" we do not imply that those outside the interest group are unaffected by decisions pertaining to the interest group. We only assert that the rights in question will only find expression in (or, perhaps, through) the interest group insofar as the interest group alone will exercise the rights in question.

7 US Constitution, Article I, §8; cf.: p. 27; cf.: "For a people who are free and who mean to remain so, a well-organized and armed militia is their best security. It is, therefore, incumbent on us at every meeting [of Congress] to revise the condition of the militia and to ask ourselves if it is prepared to repel a powerful enemy at every point of our territories exposed to invasion..." --Thomas Jefferson: 8th Annual Message, 1808.

8 US Constitution, Article I, §8; cf. p. 27.

9 Pp. 27-28.

10 To illustrate: those who are obsessed with foreign threats (e.g., the threat that neoconservatives style "Islamo-Fascism) might judge the threat of foreign invasion - albeit in a non-conventional sense - to be higher than the threat of government usurpation (since, for instance, neoconservatives arguably dominate several of the Federal branches.

11 "There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." --Thomas Jefferson to David Humphreys, 1789; "I do not like [in the new Federal Constitution] the omission of a Bill of Rights providing clearly and without the aid of sophisms for... protection against standing armies." --Thomas Jefferson to James Madison, 1787; "Nor is it conceived needful or safe that a standing army should be kept up in time of peace for [defense against invasion]." --Thomas Jefferson: 1st Annual Message, 1801; "Standing armies [are] inconsistent with [a people's] freedom and subversive of their quiet." --Thomas Jefferson: Reply to Lord North's Proposition, 1775; "The spirit of this country is totally adverse to a large military force." --Thomas Jefferson to Chandler Price, 1807; "A distinction between the civil and military [is one] which it would be for the good of the whole to obliterate as soon as possible." --Thomas Jefferson: Answers to de Meusnier Questions, 1786; "It is nonsense to talk of regulars. They are not to be had among a people so easy and happy at home as ours. We might as well rely on calling down an army of angels from heaven." --Thomas Jefferson to James Monroe, 1814; "There shall be no standing army but in time of actual war." --Thomas Jefferson: Draft Virginia Constitution, 1776; "The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so." --Thomas Jefferson to Thomas Cooper, 1814; "Bonaparte... transferred the destinies of the republic from the civil to the military arm. Some will use this as a lesson against the practicability of republican government. I read it as a lesson against the danger of standing armies." --Thomas Jefferson to Samuel Adams, 1800.

12 Hamilton, again: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms…". Hence, Hamilton seems to consider taking up arms against treasonous representatives part of "self-defense" - indeed, the very "original right of self-defense".