Wednesday, July 16, 2008

Choking on Bullets

I've been meaning to write about this for some time, since the Supreme Court's decision in District of Columbia v Heller, but I haven't really had the time (or I've had better things to do). Now, however, since I am sitting in the airport a full five hours before my flight leaves for Archimedes' wedding, I'd say I have time.

For those of you who don't know or never cared to, Heller was a case involving a DC police officer who desired the right to own a handgun to be kept loaded in his home in such a manner as to allow him to fire it on a moment's notice (e.g., no mandatory trigger locks). DC law at the time forbade:

1). The ownership of unregistered firearms.
2). The keeping of any firearm in the home not disassembled or disabled by means such as a trigger lock.
3). The registration of any handgun by a person who is not a retired police officer.

Put 1-3 together in their various combinations and permutations and you can see that Heller was out of luck. If he had been a retired police officer he could have lawfully owned a handgun, but as an active duty police officer he couldn't (this seems singularly poorly thought out to me, but that was the law). And in any case his weapon would have had to have been trigger locked or kept disassembled, which were contrary to his desire to keep a ready self-defense weapon.

Long story short, the Supreme Court struck down the district laws as violative of the Second Amendment. Heller (and by extension every citizen of the District of Columbia, and probably every citizen of the United States) must be permitted to register a handgun, and must be permitted to keep it in a "functional" state; i.e., ready to be picked up and fired at a moment's notice.

A blow-by-blow analysis of the opinions on both sides will have to wait for another time (which is to say, if people are interested, which I doubt). But I would like to discuss a few aspects of the majority and dissenting opinions.

Both the majority and dissenting justices agreed that the Second Amendment protects an individual right to "keep and bear Arms." This is, not to insult [too much] those who have traditionally held the opposite view, patently obvious for a number of reasons.

The weird thing about the majority opinion is that it discusses the nature of militia at length, and then reads the Second Amendment as protecting a right to self defense. If you have trouble seeing the connection between those two dots, I'm right there with you (although I will discuss a possibility later). The other weird thing about the majority opinion is the standard of review that it [fails to] articulate, on which point, personally, I think Justice Breyer's dissent skewers the majority.

The weird thing about Justice Stevens' dissent is that it too discusses the nature of the militia, and its regulation, at length, and then proceeds to conclude the opposite of the majority opinion. The trouble with this dissent, I think, is that it never seems to get what the militia really is.

Stevens' confusion on this point, which I think mirrors the confusion of a lot of the populace, seems to be rooted in a misunderstanding of what the militia was in ages and cultures where it was a meaningful part of public discourse, particularly but not limited to 18th century colonial Britain. Confusion on this point has led people to say that the militia is the National Guard, or that the militia doesn't exist anymore.

Both points are wrong, both on legal and historical grounds. A militia is, and always has been, the entire populace less those judged to be unfit for military service. In the poleis of ancient Greece, for example, the militia was generally the entire populace minus free women, slaves of any gender, males under the age of 18 and males over the age of 60. In 21st century America, the militia is (according to law, 10 U.S.C. ss 311-313) the entire populace minus those who are not citizens and have made no declaration of intent to become citizens, women not in the National Guard or Naval Militia, males under the age of 17, males over the age of 45, active duty members of the armed forces, those who object to militia service on religious grounds so long as they do according to regulations prescribed by the President, and certain other not-very-important classes of people such as the Vice President and customhouse clerks.

You will note that neither of those definitions has anything to do with whether or not the individuals in the militia are armed. This is one of those nuances of military history that can surprise people, but it is true: citizens are not in the militia because they are armed. They are armed because they are in the militia. In other words, the militia is not and never has been the people under arms (as has sometimes been articulated). The militia is the people who could be under arms.

In other words, the militia is less than a bunch of guys with guns. It's really just a bunch of guys, not all of whom have guns - much less any kind of military training.

That last is another one of those nuances of military history that can surprise people, but it too is true: militia, as a rule, suck as soldiers. This is because they traditionally receive very little training - three or four times a year, say, for perhaps a weekend at a time. There can and have been militia who met more regularly and hence were trained to something resembling a competent standard (the "minute" companies of colonial America are one example; the legions of the Roman Republic prior to Marius and Sulla are another), but even then militia are generally second-class soldiers at best. The American myth that militiamen (all of whom were Minutemen, according to the myth we learn as schoolchildren) won the Revolutionary War for us through their virtue, patriotism, and grit is just that - a myth. Against professional soldiers (be they Redcoats or Spartans) militia can not be expected to prevail, and the times they have done so without transforming themselves into professional soldiers first are very rare.

But back to DC v Heller. Both the majority and the two dissents agree that at least one of the primary purposes of the Second Amendment was to preserve the effectiveness of the militia as against the federal government. They wanted, in other words, an American populace who could resist the depredations of a professional federal army. It doesn't take a genius, or a background in military history, to recognize that this is a tall order. It would require an exceptionally well armed and exceptionally well trained citizenry. At a minimum it would require that all the people in the militia had guns.

What kind of guns? This is a question that neither the gun lobby nor the gun control lobby cares to think about very much, because the answer is one that neither camp likes. But the fact of the matter is that militia, when they bother to arm themselves at all, have traditionally armed themselves to the standards of professional soldiers. American colonists tended to carry the same British Land Pattern Muskets ("Brown Bess") carried by the British Army when they could get them - and they used them for hunting and self defense as well as militia duty. Militia hoplites carried the same shield and spear as Spartan hoplites (and if you think that's because there was no such thing as a "civilian" shield or "civilian" spear, you don't know enough about shields or spears). Militia may be lazy but they aren't stupid, and generally realize that the professionals carry the things they carry for a reason. The difference between an armed militiaman and a professional soldier has never been the quality of his weapons; it has been the quantity of his weapons (sometimes - not all professional armies have been fully equipped) and his skill in the soldierly arts. Think about that for a moment.

Yes, 18th century colonial militia had cannon.

Cannon, in fact, were among the items the British were attempting to seize in the Battles of Lexington and Concord. The Second Militia Act, passed in 1792, provided for militia cavalrymen (who were expected to provide their own warhorses as well as their personal weapons and gear!) and militia artillerymen. The militia of the time was (or at least, was legally supposed to be) very heavily armed. As all militia have been, or at least, have legally been allowed to be.

This is a point that the Stevens dissent completely misses and the majority opinion sidesteps very awkwardly, and with no justification. But the fact is that militia have always had the right to be as heavily armed as they could afford, and indeed the very purpose of the militia, as the Court recognizes - to resist a professional federal army - requires that the American militia be very heavily armed.

This means not just striking down assault weapon bans (which ban semiautomatic weapons with certain form factor characteristics, such as pistol grips or carrying too much ammunition), but also bans on automatic weapons (banned since 1934 under the National Firearms Act), as well as bans on armored fighting vehicles, helicopter gunships, cannon and rocket artillery - in short, if the U.S. Army has a class of weapon, the militia has a right to own that class of weapon as well (sorry, males over 45). This is a point implied in United States v Miller, a 1939 case that held that only weapons bearing a reasonable relationship to militia service were "Arms" for Second Amendment purposes. The actual weapon in Miller was a sawed-off double-barreled twelve-gauge shotgun, a weapon which the Court held had no reasonable relationship to militia service because it wasn't a weapon that a soldier of the time would have used (debatable, but whatever). But an automatic rifle certainly is a weapon that a soldier of the time (and of our time) would use. So why aren't they legal?

I'm pretty sure the answer is political. I'm pretty sure that most pro-gun citizens don't really care about whether they can own a main battle tank, or an attack helicopter, or even weapons as mundane as infantry fighting vehicles or anti-tank rockets. Most of them probably don't even want to own automatic weapons. They want to hunt and defend their homes, and that's about it. Most of them have no particular interest in fighting the United States Army. As for the gun control lobby, if they're uncomfortable with privately owned pistols, you can bet they're uncomfortable with privately owned cannon.

Whether or not they should be is debatable, I think. Big weapons are not particularly useful for criminals, as they are difficult to conceal, difficult to wield in close quarters, and tend to be expensive (both the weapon themselves and the ammunition; if the point of crime is to gain money, it's kind of counterproductive to shoot dollar bills out of your weapon). Personally I tend to agree with Xenophon that privately owned battle tanks are highly unlikely to be used in crime (at present actually they're highly unlikely to be used at all; people can barely afford to drive their SUVs). But never mind that.

So, a well-regulated militia is, among other things, a heavily armed militia. But what about self defense, which is an issue much nearer and dearer to the gun lobby than privately ownership of automatic rifles?

The right to own a weapon does not mean the right to carry it all the time or fire it whenever you want without consequence. It seems obvious to me that the Second Amendment protected Heller's right to own a handgun. But what about his right to keep it in his home without a trigger lock?

If you read the Second Amendment as protecting a right to self defense with a firearm (a right the Founding generation undoubtedly thought it had), then there's no real question in my mind that trigger lock requirements are unconstitutional. But, while the Founding generation undoubtedly thought it had a right to self defense with a firearm, the Second Amendment doesn't actually talk about self defense. It talks about preserving the right of the militia to arm itself. And approaching the topic of self defense from the well-regulated militia argument is much more difficult.

It's useful at this point to recall that the Tudors had used gun control regulations to terrorize Protestant Englishmen in the seventeenth century, and that George III used gun control regulations to try to prevent colonial uprising (look up the Powder Alarms). The Founders seem to have assumed that if the militia was going to resist the government, such resistance would be preceded by a lengthy period of tension during which gun control regulations could well be used to neuter the militia before any shooting actually broke out.

With that (pessimistic, but realistic) scenario in mind, it's hard for me to say whether preserving the militia outlaws trigger locks and similar precautions that prevent a weapon from being fired on a moment's notice. On the one hand, many militia scenarios would give ample time for militiamen to unlock their guns and proceed to the point of conflict. On the other hand, plenty of other scenarios don't - suppose for instance that British soldiers were ordered to break into the homes of agitating militia leaders in the dead of night and arrest them. Tactically the situation is little different from a robbery, and in such a situation our hypothetical militia leaders would find that a trigger lock effectively disarmed them. Of course, if they kept their weapons unlocked they would provide a perfectly legal reason for them to be arrested anyway. It's one thing if that situation occurs in a time of open rebellion. But it very well might occur before such a time, as happened with our own Revolution. The only way to prevent that is to make trigger lock requirements themselves illegal. But on the other hand, as Stevens points out, plenty of colonial and immediately post-colonial laws required storing weapons and powder in different locations for safety reasons, which would have the same disarming effect as a trigger lock in a dead-of-night scenario. There is a difference between wanting the populace to be able to oppose the government by force of arms and being paranoid, after all.

So for this reason, I conclude that the militia argument pretty clearly points to guaranteeing the right to legal private ownership of main battle tanks, but only arguably points to being guaranteed the right to keep "functional" firearms for self defense. And in fact, my personal opinion is that the militia argument probably doesn't guarantee the right to keep functional firearms. And I'm wary of reading in a separate self defense right into the Second Amendment.

In other words, I would have ruled for Heller in part and for the District in part. If I were running the District of Columbia I well might not have imposed a trigger lock requirement, but I think DC is allowed to do so if it wishes. (EDIT: see explanatory note in comments.)

Now, mind you, I'm not sure it really is such a hot idea to have an American militia. I think Iraq demonstrates plenty just how much evil can come from having a heavily armed populace in turbulent times (which, after all, is the main time you want a heavily armed populace). The Framers were generally wrong about the military effectiveness of militia (a point which Alexander Hamilton recognized); they well may have been wrong about the stabilizing political effect of a militia as well. I read one reaction to the majority opinion that basically went, "Doesn't [Scalia] get it? Kids are going to die!"

Well, let's say that they are. Frankly, when it comes to the Constitution, Scalia shouldn't care. A judge's job is not to ensure that the Constitution says rational things; his job is to say what the Constitution says, even if what the Constitution says is a bad idea. His job is (dare I say it?) to cram the people's decision down the people's throats to see if they choke.

This is a point that I feel modern jurisprudence has moved away from, and I welcome the efforts of "conservative" justices to return to it. Maybe if justices were a little more courageous in just saying what the Second Amendment says in all of its idealistic eighteenth century glory (something I think even Scalia shied away from in Heller) it would let us have a genuine public debate about whether or not the Second Amendment is a good idea, instead of dancing around the issue because everybody's afraid to say that the Framers were not gods.

4 comments:

Flick said...

Natalie, while I disagree with you over your opinion that an American militia would be a bad thing, I enjoyed reading your thoughts and appreciate your ability to come at the topic without the politics and emotion.

I'm in the militia in Virginia, and I communicate regularly with militia members across the country. We are not anything like (1) the "militias" in Iraq, Sudan, and other such places or (2) the evil neonazis that the mainstream media and groups like the SPLC make us out to be. We are, in fact, quite egalitarian.

That with rights come responsibilities is widely if not universally accepted. So what is the responsibility that comes with the right to keep and bear arms? It’s in the opening phrase of the Second Amendment. "Owning guns and complaining to your representatives being sufficient to the security of a free state,..." Right? Well that’s what most gun owners seem to think.

For your or any who wish to take seriously the responsibility that comes with the right to keep and bear arms, I invite you to explore today’s militia at http://www.awrm.org.

Peace.

Natalie said...

EXPLANATORY NOTE:

When it comes to the right of self defense, and self defense with a firearm, I think it's useful to distinguish between two concepts. One is the actual right to self defense, which determines whether and under what circumstances it can be made illegal to defend oneself or others by shooting another human being with a firearm. The other is the right to keep a weapon on hand in a state that is conducive to shooting other people on a moment's notice.

As far as I can tell, at the time of the Founding it was well settled that we had the first component (c.f. the majority opinion) but not the second (c.f. Stevens' dissent). That is, it was certainly legal to defend oneself in a legitimate self-defense situation with a firearm. But that was not thought inconsistent with laws that mandated storing weapon and powder in different places for public safety reasons. If you had a loaded weapon on hand, you could use it for self defense. But the right to use a gun for self defense did not translate into the right to keep a loaded weapon on hand all the time, along with spare ammunition.

This historical point is important to Heller because the majority finds that DC's trigger lock requirement is inconsistent with the right to self defense. I agree with Justice Stevens that it just ain't so - or at any rate it wasn't so in the 18th century, which is good enough for me. Mind you, I think that trigger lock requirements are a bad idea, but I don't think they violate the Constitution.

As for where the right to self defense is found, I think the most obvious place is actually the Ninth Amendment, which preserves the rights held by the people at the time of the Founding. The majority has to stretch to find a right to self defense in the Second Amendment, and they may not be wrong, but it seems pretty clear to me from the historical analysis in the majority opinion that the Ninth Amendment preserves that right.

Natalie said...

Flick,

Thanks for stopping by. I can see that you take your militia status seriously, and I'm glad that you do, so I wanted to expand a bit on my comments about whether an armed American militia is a good idea.

I certainly don't think it's an obviously bad idea. But I also don't think it's an obviously good idea, however seriously the armed portion of the populace takes the responsibilities that go along with owning a weapon. By "I'm not sure," I meant that I wasn't sure.

A lot of what the Founders said about the virtues of America being a heavily armed nation still rings true today, I think. A lot of the stabilizing power of a militia at the time came not from its military effectiveness but simply from its status as an armed mob. It's not that difficult for a foreign power to defeat a nation whose populace is heavily armed, but it is difficult to govern such a nation without popular consent. And that's not a bad thing.

At the same time, I think the Founders were profoundly naive at the time of the Framing as to the effects of factionalism on the American people. The idea that the American people were some kind of monolith is one that experience quickly proved untrue (and one that the Founders themselves adapted to, by and large - but that was after the Framing of the Constitution; the Constitution remains drafted against the backdrop of a monolithic People). As regards a well-armed and otherwise well-regulated militia, my concern is whether it's a good idea to arm political factions. The aspects of our Iraqi experience with militia that trouble me are not the "militias" that are actually guerrilla groups but the ones that really are militias - ordinary Iraqi citizens who have their country's best interest at heart and who happen to own guns.

Those groups have been an important tool in beating back the terrorist guerrilla fighters from their communities, so I don't mean to paint them as all bad. But they've also been exploited in the past by those same terrorist guerrillas to enhance the chaos in the country, by appealing to their patriotic sentiments.

The danger that I see is not that militia would become unpatriotic, but simply that patriots can come to blows over differing views of what patriotism means. Precisely that happened during the Civil War. More alarmingly in my mind, in times of trouble the armed militia is an obvious group to co-opt (as American Patriots did in the period leading up to the Revolution, replacing Tory militiamen in positions of power with those sympathetic to the Patriot cause). We see that happening in Iraq with groups like the Mahdi Army.

A parade of horribles is no reason to do away with an institution, of course. I recognize that. I recognize the salutary effects a militia can have, and historically has had for many nations. But in the same way I think public debate would benefit from an honest admission that the Founders were not demigods, I think it would benefit from an honest admission that militia can be beneficial (in the case of the anti-militia nutjobs) and that it can be detrimental (in the case of those who think the militia can do no wrong). I think that's important because I think that whether a militia is a blessing or a curse to a nation largely depends on how the nation decides to treat its militia and its militia tradition, and the first step in making an intelligent, informed choice about that as a nation is to give the institution a good square, honest look.

Oswell55 said...

As a male over 45, I resent the Founding Fathers' curtailment of my right to have my own helicopter gunship. Killjoys.