The Second Amendment and the Bill of Rights

One thought that follows from my talk the other day at the National Archives is the role that the Second Amendment plays in our understanding of the Bill of Rights.

Until the last few decades, my research shows that people did not talk much about the Second Amendment when they discussed the Bill of Rights. This is not true now, of course. I wonder to what extent support for the right to bear arms protects the Bill of Rights from the erosion of support that we see in other American ideals. Granted, even without the Second Amendment the Bill of Rights would have a lot to offer for those who own or enjoy guns, but perhaps that would not be enough for some.

More broadly, I’ve been thinking lately about how support for one part of the Bill of Rights shapes other parts. The answer is some, but how much?

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24 Responses

  1. Brett Bellmore says:

    Until the last few decades, the mainstream media were much better equipped to impose preference falsification on the nation; If a relative handful of gatekeepers didn’t like an opinion, nobody heard it. This undoubtedly had an impact on the part of our discourse that got recorded. The best evidence of that is that, when they lost that capacity, thanks to the internet, our national discourse on gun control changed radically.

    So, I wonder to what extent this represents an actual change in opinion, or merely the eventual failure of efforts to suppress popular opinion.

  2. dht says:

    I think the prominence of the 2nd Amendment in current discussions is directly tied to the takeover of the NRA in the 1970’s by a group of radical gun owners headed by Wayne LaPierre. Prior to that time the NRA was a gun safety organization, not a gun advocacy organization.

    • Brett Bellmore says:

      And the takeover of the NRA in the 1970’s by a group of ‘radical’ gun owners headed by Neal Knox, NOT Wayne LaPierre, was a direct consequence of the fact that the membership of the organization were not on board with the prior leadership’s plan to become a historical society instead of fighting gun control. They had a beautiful museum planned for all those guns we would no longer be allowed to own…

      The NRA is still a gun safety organization, but thanks to taking on the fight, we still have guns to be safe with.

  3. Joe says:

    I have regularly seen people particularly concerned with some provision of the Bill of Rights to not have an equal general respect for the rights therein. So, those concerned specifically with the “Second Amendment” (quotes imply a certain view of the terms) are at least somewhat less concerned about other provisions. And, to the degree they are concerned, they are selectively so.

    This is understandable — people are concerned with certain things particularly and equal concern with numerous provisions is unlikely. But, even if the support is not equal, it is likely that there is some significant bleed-over, especially when the other provisions support said right. Thus, e.g., free speech helps conservative Christians. They will find ways to not support a libertarian view of free speech, so such support will be somewhat selective, but probably it will in the long run result in a stronger respect of free speech in general.

    Again, this will only help other things so much. People have a great ability to compartmentalize.

    • Brett Bellmore says:

      You’ll routinely see the NRA teaming up with the ACLU on free speech issues; If nothing else, the NRA institutionally understands that it needs that freedom of speech to continue functioning.

      Indeed, if anything the NRA is a bit more reliable on freedom of speech in the context of political speech, than the ACLU can be counted on to be anymore.

  4. Joe says:

    ACLU supports conservatives regularly but again people selectively notice things

    • Brett Bellmore says:

      No, I’ve noticed that: The ACLU, to their credit, defends the rights it is willing to defend when exercised by anybody.

      To their discredit, they don’t defend all civil liberties. In fact, I still recall with disgust when Strossen officially severed the ACLU’s notion of “civil rights” from the actual Bill of Rights.

    • Founders says:

      “The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one existing only in the collective population of each state for the purpose of maintaining an effective state militia. ”
      -American Civil Liberties Union National Board, June 14-15, 1980

      • Brett Bellmore says:

        Yes, it’s the only amendment they felt compelled to rationalize away.

        I actually got a chance to discuss this with Alan Dershowitz, he was the guest speaker at a supper club I was in back in the 80’s. He was quite frank about the ACLU’s position being stark nonsense, said they were afraid that if they took any other position their donors would abandon them.

        Of course, that’s only because they were already doing what they could to drive away any donors who wouldn’t have abandoned them…

  5. Joe says:

    As I said people selectively notice things

  6. NRA says:

    http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3295&context=wmlr

    “The Right to Bear Arms: A Study in Judicial Misinterpretation” by Stuart R. Hays (1959)

    The United States Supreme Court has admitted there are exceptions to the right to bear arms; and, then refused to recognize the right itself. Isn’t this a recognition of the right, and also perhaps an understanding that the Presser and Cruickshank decisions were the children of the War Between the States and “Black Republican Reconstructionism”?

  7. NRA says:

    https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=5667&context=lawreview

    “The Federal Firearms Act” by Alfred M. Ascione (1939)

    Although it was common knowledge that many crimes occurred through the use of dangerous and deadly weapons, such as pistols and revolvers, control of these articles by the federal government was hampered by the Second Amendment [13] and by various groups favoring state control.

  8. NRA says:

    http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=4349&context=mulr

    “The Right to Keep and Bear Arms” by Daniel McKenna

    Judging from the prevailing trend of the cases, it would seem as if the Second Amendment only forbids Congress so to disarm citizens as to prevent them from functioning as state militia-men.

  9. Sullivan Times says:

    “I wonder to what extent support for the freedom of speech protects the Bill of Rights from the erosion of support that we see in other American ideals. Granted, even without the First Amendment, the Bill of Rights would have a lot to offer for those who own or enjoy books, but perhaps that would not be enough for some.”

    I think it would be enough. Even without the First Amendment, America is still better for Due Process than every other country.

  10. Founders says:

    “I wonder to what extent support for abortion protects the Bill of Rights from the erosion of support that we see in other American ideals. Granted, even without abortion rights, the Bill of Rights would have a lot to offer for those who value reproductive freedom, but perhaps that would not be enough for some.”

    It’s hard to say. Even before Roe v. Wade, Americans highly valued the bill of rights. But the percentage of people who valued the bill of rights may have went up a point or two for those who never had to exercise any of their other rights except their reproductive rights. But before Roe, most people probably exercised one of their other rights and valued that right.

    But would people have died defending America and the Bill of Rights before Roe v. Wade? I don’t think so, just as no one fight in a war for America before 1791. It was only after 1791 that Americans fought the British for Independence.

  11. Joe says:

    The second and third comments were on the fly, the third after the second did not seem to have be transmitted. If there was a way to delete them, I would. Anyway, the comments regarding the ACLU to me is (dubious at that) focus on a tree, but I will leave that be. As to the NRA, yes, it would be in their interests to — in some fashion — support the ACLU, on some issues. Anyway, as to concern about having guns, there continues to be a broad support of gun rights generally. The NRA helps along the margins, but there was no realistic broad chance of some disarming program. OTOH, regarding stopping various regulations, their role is more important. The recent court rulings by SCOTUS addressed a few outliers and the NRA was wary about taking the chance before Heller. I’ll leave it there.

    • Brett Bellmore says:

      “and the NRA was wary about taking the chance before Heller.”

      Their reasoning was fairly simple: For something approaching 70 years prior to Heller, ever since Miller was decided, the Supreme court had refused cert to every last case where the 2nd amendment was raised as an issue by the parties. Without exception, and without comment. While taking cases that were argued on other basis such as vagueness or due process, but only so long as the 2nd amendment hadn’t been raised as an issue. It didn’t matter how good your case was, didn’t matter if there was a circuit split that needed resolving; If you mentioned the 2nd amendment, your case was dead.

      It came as a shock to almost the entire pro-gun community when the Supreme court actually took the case.

      • Jane Raven says:

        Gun-control is the foundation of Jim Crow. If you have to let blacks own guns then you have to give blacks full equal rights. If you allow blacks to be disarmed for their own good you can justify treating them like children in every other way as well.

        It’s not a coincidence that Heller gave blacks the confidence to protest and demonstrate like we saw in Ferguson, Baltimore, Berkeley, etc.

        • Joe says:

          The dissenters in Heller and McDonald were fully supportive of claims that allowed only whites to have guns while denying said guns to blacks. The idea that the protests cited had some connection to Heller/McDonald is a reach & shoddy correlations like that don’t do gun rights arguments much good. It is better to argue that civil rights fighters in the past benefited from a right to own a gun for self-defense. That is backed up by reality.

          It is quite true that gun control in various cases, like other laws, were used in a discriminatory fashion. But, gun regulation in general has always been in place & applied evenhandedly is quite valid. Keeping guns out of certain locations, including certain towns in the Old West were also supported by locals generally for safety reasons.

          • Joe says:

            (The dissents, that is, agreed that it was unconstitutional to unequally deny rights, be it to own a gun or otherwise. A narrow argument that a specific law was applied unevenly would have been a stronger case. And, there were various cases involving guns that protected gun rights in general by using non-2A arguments.)

      • Joe says:

        I am not aware of that many lower court cases for them to take.

        I am not familiar with all the state cases, but researching the matter before Heller, there simply were not many federal cases that raised 2A claims. Know of a single case akin to Heller/McDonald — Quicili, involving a local handgun ban. Various cases involved people who committed a felony or some such. A few (one comes to mind) might have involved something other the run of the mill weapons.

        The fact that the Supreme Court did not grant cert. when a single federal court rejected a constitutional right to own a handgun is not really surprising. The other cases involving felonies etc. also weren’t prime cases. U.S. v. Emerson involved a domestic violence incident. The test case after all involved a law abiding person denied the right to own a handgun. I’m not aware of some major “circuit split” though there might have been some disagreement.

        It’s true that there was a long history of the Supreme Court not taking cases and showing no intention of doing so. So, the NRA had a reason to be wary on that front. A sympathetic case was found and conservatives on the Court took the case. In the past, conservatives on the Court were not as sympathetic, Warren Burger in particular rejecting the argument strongly.

        Again, not familiar with all the state cases though many were quite supportive of the right at issue. Along with the federal government expressly supporting the right to own a firearm, there simply was not grave threat of disarmament or the like. There were a few states with strong laws here, of course, and the constitutional argument would warrant overriding democratically passed legislation in that respect. This would go against a “state rights” view of some as well which suggests why even some nation-wide conservative forces might not have wished to press the point.

  12. Equality of Rights says:

    “regarding stopping various regulations, their role is more important”

    Can you think of any right you would want these regulations to apply to except guns? It’s almost like these regulations were invented to only apply to guns.

    If you ask people if they generally believe in waiting periods, background checks, and taxes on rights–they’ll tell you ‘no’! you can’t require women who want abortions to go through waiting periods, you can’t require people who want to use facebook to submit to a background check, and you can’t require people to pay taxes to vote. You don’t need the NRA to tell you these regulations are wrong–because you can’t think of a single right you would want any of these things to apply to in countries that don’t have the right to keep and bear arms.

    If owning a gun is right to you, it is inherently obvious that these measures are unconstitutional if they would be unconstitutional as applied to any other right because they are rights. If the reason waiting periods on abortions is wrong is because having an abortion is a right, then the reason waiting periods wrong for guns is because owning guns is a right.

    • Jonestown says:

      Yes, I definitely think people find it patronizing when the elite says that they could never have come up with the idea that gun-control laws are unconstitutional on their own. It doesn’t take a genius to see the supreme court void these laws when they’re applied to any and every other right, and then assume they would also be unconstitutional when applied to the right to keep and bear arms.

      If an unconstitutional speech-control law is applied to abortion, everyone assumes its obvious that its unconstitutional, but if it’s applied to guns and people think its unconstitutional the elite thinks the NRA told us its unconstitutional.

      Very insulting. People v. Chariez was obvious.

    • Joe says:

      If waiting periods for abortion are so unpopular with “people,” why are there so many waiting period laws?

      People generally do support regulations of a variety of rights though I very well agree that in various cases they are wrong to do so. Rights are not absolute. There is a slew of acceptable regulations of speech and so forth. Thus, it is a matter of looking at the details. And, yes, people tend to be selective, sometimes unfortunately if unsurprisingly so. Few are consistent libertarians in this respect. So, e.g., they might support waiting periods on guns or abortion, but not both.

      Rights also are not all the same — regulations can be legitimate for some given the situation and not others. For instance, high school students have the right to buy books generally speaking but it is not inherently obvious that some 15 year old who has the right to buy “Peyton Place” should have the right to buy a handgun. Someone on parole can buy books but perhaps not a gun etc.