A Few Words on the Second Amendment's Historical Meaning

"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.

"The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." [1]

~ Noah Webster, Jr.

On the historic meaning of the Second Amendment: What does "well-regulated" mean?

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. (U.S. Constitution, Amendment II.)

Samuel Johnson, the famous British lexicographer, simply gives "regulate" as "To adjust by rule or method."[2] Of course, one of the meanings for "rule" is "Canon; precept by which the thoughts or actions are directed."[3]

This is the etymological root of "regulate." According to the standard Lewis and Short lexicon: the Latin "regula" meant "a straight piece of wood, ruler or rule ...a rule, pattern, model, example...".[4]

Clearly, we are not merely interested in the etymology of the word "regulate." We are also interested in documented uses of the phrase "well-regulated." Numerous examples are available from the period ranging from the pre-Revolutionary War 18th century through the late 19th century.

"The Oxford English Dictionary gives the following examples of usage for the term 'well regulated': 1709: 'If a liberal Education has formed in us ...well-regulated Appetites, and worthy Inclinations.' ...1812: 'The equation of time ...is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun dial.' ...1862: 'It appeared to her well-regulated mind, like a clandestine proceeding.' 1894: 'The newspaper, a never wanting adjunct to every well-regulated American embryo city.' One definition of the word 'well' in the Oxford English Dictionary is 'satisfactorily in respect of conduct or action.' One of The Oxford English Dictionary definitions for the term 'regulated' is 'b. Of troops: Properly disciplined.'"[5]

The Oxford English Dictionary gives a contemporary definition for "regulate" as "Control or supervise (something, especially a company or business activity) by means of rules and regulations."[6]

Intuitively, things like "appetites" and "clocks" are not "controlled or supervised" by the ipse dixits of executive or legislative bodies. Rather, they are "well-regulated" insofar as they are self-"ruled" in virtue of having their parts properly fitted and maintained.

That this was a common use for the phrase "well-regulated" is further apparent in the construction "her well-regulated mind." For the workings of one's mind, being limited to "private access," are not susceptible to external "regulation" in the contemporary sense.

We are particularly interested in the phrase "well-regulated" as it occurred in discussions of citzens' militias. As was reported, above, the Oxford gives the sense of being "properly disciplined." How this cashes out becomes a bit clearer when we consult the following commentary, from the early 19th century.

"Trainings, whether by companies or by regiments, are but a part of the drill system, and if it is wise, if it is prudent, to have 'a well regulated militia,' it is ...indispensable, that those composing this force should be well trained to the use of arms—that they should, be familiar, not only with the manual exercise, but with the various and approved evolutions in marching—that they should be trained and exercised in companies and regiments, and in this way they would acquire a confidence in each other, which would be influential and highly beneficial when called to active duty."[7]

In the above text being "well-regulated" is transparently linked to being "well-trained."

When one consults the voluminous writings of the Founding Fathers, the conclusion is inescapable: the contemporary "federal government-control"-reading of "regulation" was simply unknown in the 18th century.

"In recent years it has been suggested that the Second Amendment protects the 'collective' right of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."[8]

This same meaning appears also in one of the oral arguments[9] from the recent Supreme Court case District of Columbia v. Heller.[10]

In questioning a Mr. Walter Dellinger, Justice Antonin Scalia asks of the phrase "well-regulated": "It means 'well-trained,' doesn't it? ...Doesn't 'well-regulated' mean 'well-trained'?" Scalia concludes, saying: "It doesn't mean - it doesn't mean 'massively regulated.' It means 'well trained.'"[11]

In general, the Bill of Rights was a statement written so that the average person could detect, without any intermediary, when his rights had been violated.

"[T]he Bill of Rights was designed to inform the people at large of their rights so they could enforce them, not just to trust in and admonish a potentially unresponsive government not to tread on them."[12]

As Stephen Halbrook noted, the Bill of Rights was a public declaration - able to be understood by the meanest yeoman - of the points at which federal powers ended. The "thrust" of the Bill of Rights is a marking out of the domains onto which the government may not trespass. The First Amendment, for instance, is not circumscribing freedom of speech; it is announcing that individual freedom. The Fourth Amendment is not bracing people for police "checkpoints"; it is notifying them of their individual immunity from such molestation. Likewise, the Second Amendment is not laying a foundation for intrusive "regulation" in the modern sense; it is proclaiming the individual right to keep and bear arms.

So much for the question of interpretative issues.

On the historic meaning of the Second Amendment: Is the entire amendment “irrelevant”?

However, another worry with the historic interpretation might be termed "irrelevance." One might ask, for instance: How can the Second Amendment serve as a defense against the rise tyranny in our government in an age in which the "military-industrial complex" provides that government with a wide assortment of weaponry (for example, without limitation, armored vehicles, fully-automatic firearms, lasers, missiles, nanotechnology of various kinds, "Predator"-style drones, sonic weapons and state-of-the-art surveillance) that far outstrips the capabilities of revolvers, rifles and semi-automatics?

There are, in my estimation, really two issues, here. Let me call the first issue "theoretical" and the second "practical."

Theoretically, I have two responses. Number one, suppose that the militia is passé. For example, in his opinion in D.C. v. Heller,[13] Justice Scalia wrote: "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."[14]

Halbrook: "[A]nother interpretation of the Second Amendment, which opposes any right of 'the people' to have arms, reasons thus: The right to have arms is dependent on a militia being [crucial] for the security of a free state, but despite the clear words of the [second] amendment and the aversions of the framers [to having a standing army],today the standing army allegedly protects freedom.

"This interpretation appears to reduce the amendment to a conditional or hypothetical syllogism, with its first premise as follows: If a well-regulated militia is necessary to the security of a free state (p), then the right of the people to keep and bear arms shall not be infringed (q); that is, p implies q. Standing alone, p and q constitute, respectively, the second premise and the conclusion of the syllogism, which appears thus: [p ⊃ q; p; ∴ q] and is valid by reason of [the logical rule known as] modus ponens.

"Yet the denial of the antecedent, should it be expressed in the second premise, fails to imply the denial of the consequent in [an alternate] conclusion; that is, even if a militia is not necessary for the existence of a free state, [for all that the above reasoning shows] the people still have a right to keep and bear arms. The fallacy of denying the antecedent is committed in this form: [p ⊃ q; -p; ∴ -q.]"[15]

To reiterate: The existence of a well-regulated militia in the 18th century may have been sufficient to justify the widespread bearing of arms. However, even if that sort of militia is outmoded today, such does not show that the right to bear arms is unnecessary.

I myself am not satisfied to leave matters here, though. Number two, I fear that the initial question itself demonstrates the degree to which we have meandered away from the "Spirit of '76."[16] For in 1775, statesman Patrick Henry famously answered a similar question. He was addressing the concern that the colonists faced well-nigh impossible odds in confronting a British army that was better armed, better equipped, better financed and better trained. Henry answered:

"They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed...?"[17]

The "Spirit of '76" was, if anything, arguably the will to oppose tyranny - even in the face of impossible odds. To the extent that the odds faced today are even more lopsided, given the fact that Americans have allowed for the formation of a "standing army" - ignoring the advice of esteemed forefathers such as Thomas Jefferson[18] and Noah Webster[19] – lovers of liberty are "weaker" than were the colonists. This is obvious. But are we on that account obliged to give up the last shreds of liberty? Henry:

"Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?"[20]

I think that the theoretical answer is clear: Insofar as we wish to continue to pass the torch of liberty, delivering it to posterity in at least something of the form in which it was delivered to us, the we are obligated to recognize the importance of an armed citizenry.

As Alexander Hamilton once said: "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 [sic] 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."[21]

Perhaps modernists at once declare, in the words of the character Tank, from the Matrix:[22] "[W]hat you're talking about is suicide."[23]

Patrick Henry gives the rejoinder – the position embraced by our forefathers: "Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"[24]

Therefore, it seems that we are left with the practical question: How does a liberty-loving populace prepare itself for the possibility of having to repel an onslaught from an advanced military under the command of a tyrannical government?

This is indeed a difficulty. I should insist, though, that the difficulty is practical and not theoretical. To put it another way, "x is difficult to do" hardly entails that "x ought not be done."

The matter is not hopeless.[25]

As I have written in another place: "If ...the domestic government ...maintain[s] a standing army; and if ...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."[26]

However, it is beyond my competence to tease this out in any detail. Perhaps weaponry is not as important as training. Perhaps a genius strategist could turn the tide.[27]

On the other hand, the pressure could be relieved a bit were the United States to see friends of liberty once again populating our legislatures and courts. The disparity between the (hypothetical) well-regulated militias and the military could be lessened in virtue of the reduction of military spending, the defunding of weapons development and the outlawing of various "exotic" tools and surveillance technologies.[28]

On the historic meaning of the Second Amendment: Final thoughts

Let me conclude by evidencing that I am an "equal-opportunity" critic. Whereas I believe that many on "the left" err in their interpretation of words such as "bear," "militia" and "well-regulated," I also believe that many on "the right" err in virtue of their blind support of the standing army. Jefferson, on receiving from James Madison a draft copy of the work of the Constitutional Convention in 1787, wrote back: "...I do not like ...the omission of a bill of rights providing clearly and without the aid of sophisms for ...protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land."[29]

In his "Draft Constitution for Virginia 1776," Jefferson put it directly: "There shall be no standing army but in time of actual war."[30]

Suffice it to say that anyone wishing to defend a robust conception of the Second Amendment ought to resist the disarmament of the people as fervently as she resists the strengthening of the military.

- Matthew J. Bell

Notes:

---

[1] Noah Webster, "An Examination Into the Leading Principles of the Federal Constitution by a Citizen of America," Paul Leicester, ed., Pamphlets on the Constitution of the United States Published During Its Discussion by the People, 1787-1788, Brooklyn, N.Y.: n.p., 1888, p. 56.

[2] Samuel Johnson, A Dictionary of the English Language, 3rd ed., Dublin: W. G. Jones and Thomas Ewing, 1768, n.p.

[3] Ibid.

[4] Charlton T. Lewis and Charles Short, A Latin Dictionary, Oxford [U.K.]: Clarendon Press, 1988, p. 1553. In the Christian tradition, the "regula fidei," or "rule of faith," marks out a certain set of beliefs and practices that are held to be essential for Christianity. Historically, these "revealed truths" were not handed from the top-down, as it were, by decree from any ecclesiastical body; they originated from the bottom-up, as inferences from scripture and from the writings of the Apostolic Fathers. The Greek word "kanon" similarly designates a "measuring rod," and is the controlling meaning in phrases such as the "biblical canon." See Frederick William Danker and Walter Bauer, A Greek-English Lexicon..., Chicago and London: Univ. of Chicago Press, 2000, pp. 507-508.

[5] Daniel J. Schultz, "The Second Amendment: The Framers' Intentions," Lect Law, <http://www.lectlaw.com/files/gun01.htm>; citing The Oxford English Dictionary, 2nd ed., Oxford [U.K.]: Clarendon Press, 1989.

[6] "Regulate," <http://www.oxforddictionaries.com/us/definition/american_english/regulate>.

[7] Entry, Tues., July 1, 1823, Journal of the House of Representatives of the State of New Hampshire, at Their Session, Holden [sic] at the Capitol in Concord, Commencing on the First Wednesday of June, and Ending the Third Day of July, Anno Domini One Thousand Eight Hundred and Twenty-Three, Concord, N.H.: Jacob B. Moore, 1823, p. 271. Note that in this context, the word "evolution" is a tactical term meaning: "The motion made by a body of men in changing their posture, or form of drawing up," according to the fourth entry under "evolution," in Samuel Johnson, A Dictionary of the English Language, London: J. F. C. Rivengton, et al., 1792, n.p. Again, Noah Webster, in his Americanized version of Johnson's esteemed dictionary, defined the verb "bear" in the following terms: "To wear; as, to bear a sword ...; to bear arms in a coat." He furthermore gave the example of having a handgun on one's person as an instance of "bearing arms." An American Dictionary of the English Language, New York: S. Converse, 1828, n.p..

[8] Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, rev. ed., Albuquerque, N.M.: Univ. of N.M. Press, 2013, p. xi. Halbrook notes that "the Tenth Amendment ...clearly distinguishes between the states and the people." Ibid., p. 93. Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." "Tenth Amendment," U.S. Constitution, Cornell Univ. Law School, <https://www.law.cornell.edu/constitution/tenth_amendment>. "It is unlikely that the framers would have intended to commit blatantly the fallacy of equivocation by shifting the meaning of 'the people' from amendment to amendment, or that they would have risked the fallacy of ambiguity by defining the phrase 'the people' in the Second Amendment in such an unusual manner, that is, as 'those people in a select state militia.'" Halbrook, op. cit., p. 93.

[9] No. 07-290, March 18, 2008.

[10] D.C. v. Heller, 554 U.S. 570 (2008).

[11] Argument transcript, op. cit., Alderson Reporting Co., p. 26.

[12] Halbrook, op. cit., p. x.

[13] Loc. cit.

[14] Op. cit., p. 67. On whether the standing army is a boon or a bane, recollect the words of our founders: "That as the colonies possess a right of appropriating their gifts, so are they entitled at all times to enquire into their application, to see that they be not wasted among the venal and corrupt for the purpose of undermining the civil rights of the givers, nor yet be diverted to the support of standing armies, inconsistent with their freedom and subversive of their quiet." John Hancock, "Resolutions of Congress on Lord North's Conciliatory Proposal," Philadelphia, Jul. 31, 1775; archived online at Avalon Project, Yale Law School, <http://avalon.law.yale.edu/18th_century/jeffnort.asp>.

[15] Halbrook, op. cit., pp. 93-94.

[16] Another facet of this move away from our founding "Spirit" can be located on the political "right." For example, Thomas Jefferson opined: "The spirit of this country is totally adverse to a large military force." Thomas Jefferson, letter to Chandler Price, Feb. 28, 1807; reproduced by Henry Augustine Washington, The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private: Published by the Order of the Joint Committee of Congress on the Library, From the Original Manuscripts, Deposited in the Department of State, vol. 4, Washington, D.C.: Taylor and Maury, 1858, p. 47.

[17] Patrick Henry, speech, Mar. 23, 1775; posted as "Patrick Henry - Give Me Liberty Or Give Me Death," Avalon Project, Yale Univ. Law School, <http://avalon.law.yale.edu/18th_century/patrick.asp>.

[18] "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, letter to David Humphreys, Mar. 18, 1789; quoted in Joyce Appleby and Terence Ball, eds., Jefferson: Political Writings, Cambridge [U.K.]: Cambridge Univ. Press, 1999, p. 113.

[19] See the introductory quotation.

[20] Loc. cit.

[21] Alexander Hamilton, Federalist No. 28; archived online at Avalon Project, Yale Univ. Law School, <http://www.yale.edu/lawweb/avalon/federal/fed28.htm>.

[22] Warner Bros., 1999.

[23] “The Matrix,” 1999, quotes, Internet Movie Database, <http://m.imdb.com/title/tt0133093/quotes?qt=qt1229257>.

[24] Loc. cit.

[25] I discuss this a bit in my earlier weblog post Matthew J. Bell, "Towards a Jeffersonian Appraisal of the SCOTUS 'D.C. Gun Ban' Decision," Liberty Bell [weblog], Jun. 30, 2008, <http://bellofliberty.blogspot.com/2008/06/towards-jeffersonian-appraisal-of.html>.

[26] Ibid.

[27] For inspiration, if not advice, one might consider Cormac O'Brien's Outnumbered: Incredible Stories of History's Most Surprising Battlefield Upsets (Beverly, Mass.: Fair Winds Press, 2010). For a more theatrical reminder that numbers and weapons do not mean everything, see Zack Snyder's fictionalized retelling of the Battle of Thermopylae, in the film 300 (Warner Bros., 2007).

[28] I add, however, that the fact that the U.S. in theory records a massive portion of communications does not imply that these records are meaningfully or usefully archived or accessible - let alone "monitored" in anything like real-time.

[29] Thomas Jefferson, letter to James Madison, Dec. 20, 1787; archived online at Library of Congress, <http://www.loc.gov/item/mtjbib003193/>. I hasten to add that those on "the right" also frequently err in terms of reducing the right to bear arms to mere hunting or personal self-defensive exercises.

[30] Thomas Jefferson, Jun. 1776; archived online at Avalon Project, Yale Univ. Law School, <http://avalon.law.yale.edu/18th_century/jeffcons.asp>.

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".