I have to admit, sometimes writing, talking and thinking about guns, gun laws, gun control, gun rights and gun policy depresses the hell out of me. Like many contentious issues of law and policy, I find the topic endlessly fascinating, and like to use writing and discussion to help me understand it better, without trying to feel too strongly about it since I don't really have a dog in this fight; I don't own or use guns, don't really want to own or use guns, and don't particularly care all that much if anyone else does. But how other people feel about it, and how they express those feelings, can become really upsetting and disheartening.
People who do feel strongly about guns, and about themselves as gun-rights or gun-control advocates, can sometimes be a little over-eager to reinforce those feelings, and thus wind up feeling profoundly threatened by any contrary ideas, especially novel ones that they've never considered before. And by "profoundly threatened," I mean profoundly threatened. I am endlessly amazed by how forceful the pushback is no matter how subtle or benign the idea may be, and how intensely personal it inevitably becomes, no matter which "side" of this "issue" the antagonist is on.
A while back I did a thought experiment that led me to a conclusion that, it seems, 240 years of history, scholarship and jurisprudence may have missed: that the "right to keep and bear arms" that is announced by the Second Amendment is a property right, as opposed to a civil right (or "liberty interest," which is probably a better term since "civil rights" could include property rights). This appears to be an entirely novel idea; I would have to research whether this has ever been argued or postulated before. I don't actually know if it has been or not. I discovered this idea as a result of that thought experiment.
I certainly didn't start with the idea that gun rights are property rights, and I didn't have any desire, need or motivation to reach that conclusion. I was trying to figure out why background checks and discrete weapons restrictions impermissibly "infringe" upon my "right to keep and bear arms," but outrageously-high gun prices, having to pay more than I can afford for my chosen weapon, doesn't. The only explanation that made sense and held up to scrutiny was that guns are goods, and goods must be paid for, because the seller has property rights in those goods until they are sold. Liberty, on the other hand, is something you should never have to pay for. Although some liberty interests may be facilitated in their exercise by certain goods or services, the rights themselves are not dependent on them; the Second Amendment is the only part of the Constitution that explicitly refers to a specific category of goods, and announces a non-infringeable "right" to "keep and bear" those goods. (More here.)
The debate about gun rights and gun control always revolves, be it on blogs or talk shows or in the courts and legislatures, around doing things with guns; what people can do with their guns, what they can't do with their guns, what they have a "right" to do with their guns, what they might do with their guns, what they want to do with their guns, what they need to do with their guns, what they won't do with their guns, what they worry or fear other people will do with their guns, how to prevent people from doing certain things with their guns, what The Founders™ wanted people to be able to do with their guns, and so forth. That's what everyone cares about; that's what everyone is, and has always been, invested in.
But the Second Amendment does not explicitly give us the answers. Instead we have to look to the law, and barring that, to the writings and commentaries of our various ideological allies, and whatever writings and commentaries those allies have carefully selected, edited and compiled for us to validate one normative premise or another, and to use as ammunition (no pun intended) in case anyone comes along with a new or different idea.
But if you set all that aside and start with the text itself, what the Amendment actually says [setting aside, for the moment, the "well-regulated militia" part], and apply nothing but simple English grammar and syntax to it, you have to conclude that the phrase "to keep and bear arms" means to own, possess and/or carry "arms." Ownership and possession are property interests, and to "carry" something is to exercise one's property rights in that thing. A gun is, indisputably, a thing, a chattel; the gun itself is property. To "keep" a chattel means, essentially, to own or possess it, permanently or quasi-permanently. To "bear" a chattel also means to own or possess it, or to carry it, hold it, display it, store it, maintain it, and so forth -- all of which are property rights.
Recently I've been confronted about the meaning of the English verb "to bear." I've been told that "to bear" does not mean to own, possess, hold or carry; rather it means, inter alia, "to act," "to use," and/or "to wage war."
An 18th-century English dictionary provides the following definitions and usages of the verb "to bear:"
A Dictionary of the English Language (1792 edition)Two other 18th-century English dictionaries, the 1768 edition of the one transcribed above, and a Universal Etymological English Dictionary published in 1756, contain similar definitions and usages. I'm not sure that "to act upon" a chattel is the same as "to act with" (i.e., to "use") that chattel ("acting upon" a chattel tends to mean doing things to it, not with it), and the rest of the definitions and usages of "to bear" listed here don't seem to include any particular acts one can do with a chattel other than carry it, hold it, maintain it or exhibit it.
To BEAR. v. a.pret. I bore, or bared
1. To carry as a burden.
2. To convey or carry.
3. To carry as a mark of authority.
4. To carry as a mark of distinction.
5. To carry as in show.
6. To carry as in trust.
7. To support ; to keep from falling.
8. To keep afloat.
9. To support with proportionate strength.
10. To carry in the mind as love, hate.
11. To endure, as pain, without sinking.
12. To suffer to undergo.
13. To permit.
14. To be capable of ; to admit.
15. To produce, as fruit.
16. To bring forth, as a child.
17. To possess, as power or honour.
18. To gain ; to win.
19. To maintain ; to keep up.
20. To support any thing good or bad.
21. To exhibit.
22. To be answerable for.
23. To supply.
24. To be the object of.
25. To behave.
26. To impel ; to urge ; to push.
27. To press.
28. To incite ; to animate.
29. To bear in hand. To amuse with false pretences; to deceive.
30. To bear off. To carry away by force.
31. To bear out. To support; to maintain.
To BEAR. v. n.
1. To suffer pain.
2. To be patient.
3. To be fruitful or prolifick.
4. To take effect ; to succeed.
5. To tend ; to be directed to any point.
6. To act as an impellent.
7. To act upon.
8. To be situated with respect to other places.
9. To bear up. To stand firm without falling.
10. To bear with. To endure an unpleasing thing.
Of course, not every idiomatic usage of a word is covered by a dictionary; this one defines the idioms "to bear in hand," "to bear off," "to bear out," "to bear up" and "to bear with," but not "to bear arms." It's also been suggested to me that "to bear arms" has, and had in the 18th century, the idiomatic meaning "to use arms to kill others with or to wage war." The evidence of this was, purportedly, Wikipedia, quoting Justice Scalia's majority opinion in D.C. v. Heller, 128 S. Ct. 2783 (2008), citing an argument raised in one of the amicus briefs, which is unsourced:
The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war."Id. at 2794 (citation omitted). However, the person citing this "evidence" conveniently left out what immediately follows:
But it unequivocally bore that idiomatic meaning only when followed by the preposition "against," which was in turn followed by the target of the hostilities. Every example given by petitioners' amici for the idiomatic meaning of "bear arms" from the founding period either includes the preposition "against" or is not clearly idiomatic.Id. (citation omitted) (emphasis in original). Hence even Justice Scalia acknowledged that the phrase "to bear arms" does not by itself mean, and did not in 1789 by itself mean, "to use arms to kill others with" or "to wage war." The phrase, "to bear arms against [X]" might have had that meaning, provided [X] was identified.
Even looking up the phrase "bear arms" on Dictionary.com, in search of a modern idiomatic meaning, provides only the following:
IdiomsThe evidence, then, does not show that the phrase "to bear arms" means, or meant in 1789, "to use arms to kill others with" or "to wage war." The evidence thus far shows that "bear arms" means to carry weapons, or to be a member or the military or some similar arms-bearing force (such as a police department). What those arms may or may not be used for is not included in that phrase.
10. bear arms
a. to carry weapons.
b. to serve as a member of the military or of contending forces[.]
Moreover, the use of a chattel is also a property right. It's one of the "sticks" in the "bundle of rights" that make up property rights in chattels (including inter alia the right to hold, store, sell, give away, convert, alter, destroy, use, and exclude others from using, the chattel). So even if we include "to use" in the definition or usage of "to bear," the only conclusion we can reach, based on the evidence presented thus far, is that the Second Amendment announces a "right" to own, possess, carry and use a particular type of chattel ("arms"), all of which are property interests.
Which brings us to the original question: Why is this idea so profoundly threatening?
I have a couple of theories about that, which I'm sure those who feel profoundly threatened by it won't agree with and won't want to hear. The fact is I haven't read or heard much to authoritatively disprove the idea that the "right to keep and bear arms" is, or ought to be considered, a property right or a set of property rights. The various First Amendment analogies and others with which I've been presented over and over again don't hold water, because they're just not analogous; the respective Amendments are simply not the same and do not say, mean or do the same things. Of course the point is always made that there's really no history or jurisprudence to support this property-rights theory, which I don't really dispute. But the fact that historians, scholars and courts have missed it or ignored it -- if indeed they have -- doesn't by itself mean that it's wrong or logically unsound. Moreover, there's also no history or jurisprudence or authority I'm aware of making the distinction in the opposite direction, viz., affirmatively finding that the rights announced by the Second Amendment are not property rights.
It's only natural, when presented with a novel idea that challenges one's deeply-held beliefs, to react defensively and defiantly, even take the new idea as a personal affront. But some of the reactions I've received to this idea have been over-the-top hostile. I have twice been called an "authoritarian" and "anti-rights activist" bent on "restricting the Second Amendment" to what I "wish" it means, which apparently is something like "you can own guns, but you can never use them." This is where the conversation usually ends up after I and the other party fail to change each other's minds. Unable to understand or consider a novel idea, the person feels threatened by it and lashes out with an ad hominem attack, calling me an authoritarian. Which, I guess, I must be if I don't see guns and gun rights the same way they do.
For one thing, I'm not sure what is "authoritarian" about property rights. Most libertarians I talk to are all about property rights; in fact some of them have told me that there is no such thing as "civil rights" at all, that civil rights are authoritarian or that believing in civil rights is authoritarian, and that property rights are the only legitimate rights/liberties/freedoms that exist. Yet somehow the idea that this is a property right and not a civil right is threatening to them, and indicative of authoritarianism. That, I can't figure out. And I've never used this property-rights theory to support or advocate for any particular gun controls or restrictions, let alone argued that it would permit more controls or restrictions than are already permissible. Property rights and liberty interests are both protected by the Fifth and Fourteenth Amendments' respective due process clauses. So I don't know what that's all about either.
As far as that "you can never use them" bit goes, I suppose it comes from the implication -- which is intended -- that the Second Amendment announces the right to own, possess and carry guns, but it does not announce a specific "right" to do any particular thing with our guns. Meaning, the Second Amendment does not announce a "right" to shoot, or as also suggested to me, a "right" to "use guns to kill others."
But that is not to say that such rights don't exist, nor that we are "forbidden from ever doing anything with a gun" or even that we can be forbidden from ever doing anything with a gun. (Obviously, "You do not have a right to [X]" is not the same thing as "You are forbidden to [X].") Clearly we can be forbidden from doing some things with guns, such as murder, assault, robbery, vandalism and extortion. No one has a "right," and the Second Amendment does not announce a "right," to "use" one's "arms" to murder, assault, rob, vandalize or extort. No gun-rights advocate has ever stated or suggested to me that it does. Indeed, gun-rights advocates point to these crimes often, as evidence that there is no point in "banning" or controlling guns because these various acts are already against the law.
So, the obvious next question is, what specific things, if any, does the Second Amendment give an individual the "right" to do with his guns? Since there are clearly things one does not have a right to do with one's guns, what does the text of the Second Amendment tell us to distinguish acts to which we have a right from acts to which we don't have a right? Answer: Nothing. That's where the debate begins. We have this debate because the Second Amendment itself does not provide the answers. That doesn't mean that the rights announced by the Second Amendment are not property rights.
What would the practical effects be of acknowledging and recognizing that Second Amendment rights are property rights? Probably none. It certainly wouldn't mean that guns could be confiscated; if anything it would mean the opposite. Property is already shielded from confiscation by the Fifth Amendment, and having the Constitution separately carve out a special category of property for non-infringeable property rights would seem to strengthen, rather than weaken, that shield. It also wouldn't subject guns to ordinary commercial regulation or products liability, because again, carving out a special category of products for non-infringeable property rights would seem to exempt them from such laws. It would obviate the need to exempt them by statute, not prevent them from being exempted by statute or nullify the existing statutory exemption. Ultimately, all it would really mean is that the law can place reasonable limits on what can be done with a gun, on what a gun can be used for, which, as noted above, it already does.
So, at the end of the day, the idea that the Second Amendment announces property rights in guns, without announcing any specific "right" to do any particular thing with them, should not be the least bit threatening. But it is. And I think I know why.
Speaking from my own experience and observation, and having given this a lot of thought and written about it at length here and elsewhere, many gun-rights advocates I've encountered have struck me as the heroes of their own private mythology. What I think is being threatened here is their own sense of, and desire for, personal heroism (viz., to feel heroic, if not actually be heroic). They are, and expect to be, the heroes of the next American Revolution, and they want to be able to continue to think of themselves that way by asserting a "right" to be heroes, and to do the things, the "Second Amendment remedies," that will make heroes out of them when the time comes. The guns are not only the instruments of that heroism, they're symbols of it as well.
Many gun-rights advocates I've encountered consistently describe and refer to themselves, their guns, the Second Amendment, and what they have a "right" to do with their guns, in florid, grandiose, mythic-heroic -- and very, very personal -- terms. By contrast, referring to guns as mere consumer goods, retail products, little mechanical devices manufactured and sold for profit, de-mythologizes them. One might even think it trivializes them. If guns are just property, retail goods, and don't represent anything more than that, then a person can't really justifiably take pride in or feel particularly special, let alone heroic, about owning, possessing or carrying one. (I might take pride in my music, were it any good, but I've never thought of or referred to myself as a "proud piano owner.") Moreover, simply owning, possessing or carrying a mechanical device bought at retail is neither mythic nor heroic. It's actually quite ordinary.
So, what I've apparently done is accuse the Heroes of the Next American Revolution of being nothing but ordinary retail consumers. I guess that makes me an "authoritarian" and an "anti-rights activist." Oh well.