RKBA: Meaning by JR (Apr 19, 2010) (republished with permission)
Today, "Second Amendment/Open Carry Rallies" are taking place in several cities around the country, including DC (where organizers have hopefully succeeded in telling attendees NOT to bring their firearms--though apparently not everyone is getting the message).
So it seems like today--when armed individuals will be using their guns not as means of national or personal defense, but as props in their political speech acts--would be a good day to discuss something that’s been bothering me for some time now. I’d like to take this opportunity to discuss the difference between "gun rights" and "the Right to Keep and Bear Arms," because contrary to popular opinion, these terms mean very, very different things.
[JR’s] disclaimer: Since I do not believe that more gun control is always bad for our electoral prospects, I do not consider myself a member of the DailyKos RKBA community--more like the gadfly on the wall. But in the spirit of respectful debate and inclusive dialog, several RKBA members asked if I would be willing to write this piece, and I happily accepted, and thank them for the invitation. Think of this as contrarian guest-blogging. I also wish to note for the record that I am neither a lawyer nor an expert on Second Amendment jurisprudence, but rather a law student and gun owner who’s taken a recreational interest in the subject.
I’d like you to take a look at a a few photographs.
First, this classic shot that I think needs no caption:
I think we all know the context of this shot. Heston repeated his "five words" at rallies and fundraising events around the country, frequently using this same long gun, which appears to be a single-shot flintlock.
Next, a buddy of ours from last summer’s "Town Hall" silly season:
That gentleman is Christopher Broughton. He’s seen here toting an AR-15 and sidearm at an Arizona rally headlined by President Obama. When asked by The Arizona Republic why he came so armed, he replied, "I want attention brought to the ideas that I espouse." He was joined by about a dozen others in this action.
Last one, from a recent 2nd Amendment/Rand Paul rally in Frankfort, KY:
This camo-clad individual was actually part of a larger group of militiamen (this one appears to have been a contingent of the "Oath Keepers"), most of whom were likewise sporting Rand Paul stickers and one of whom was a speaker at the rally along with Paul.
Now, this is a tricky question and a thorny issue, but when I look at these photos, I don’t necessarily see people exercising the Right to Keep and Bear Arms. I see people carrying guns as political speech. I believe those are not the same thing.
The Meaning of the Right to Keep and Bear Arms
When we talk about RKBA, we’re not talking about an unlimited grant of permission to carry however or wherever you want, own whatever you want, or fire whatever load you want. RKBA is actually a relatively narrow right in the grand spectrum of gun rights. RBKA, in my view, is the right of the people to possess arms and carry them in case of confrontation, in order to defend themselves, other people in peril, and the State. That’s not just my view of the meaning of RKBA, incidentally, but also that of the 5-justice majority in DC v. Heller: see Scalia’s opinion for the Court, pages 10-11:
At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, JUSTICE GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ " Id., at 143 (dissenting opinion)(quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.
He summarizes on Page 19:
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms" had in the 18th century. In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves and the state" or "bear arms in defense of himself and the state."
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . ."
I think this is a pretty fair reading of what exactly the right in question, the Right to Keep and Bear Arms, really is: it’s the individual right to own and carry weapons for purposes of defense of self and others (including the State).
There’s a corollary to that, however: gun rights and activities that go beyond owning and carrying weapons for purposes of confrontation are not necessarily covered by the Second Amendment’s guarantee.
For example, restrictions on the types of weapons that may be owned or carried don’t strike me as inherently violative of the Second Amendment, so long as the citizenry still retains the general right to own and carry weapons sufficient for confrontation. The right itself remains secure, just as the right to free speech remains secure even though certain forms of speech acts are unprotected (such as falsely shouting "fire" in a crowded theater or inciting a mob to riot).
In fact, unlike Justice Scalia and the Heller majority (see the bottom of page 54) , I think a more difficult question is raised in denying to felons and the mentally impaired the right to gun ownership. Laws preventing these groups from ever owning a firearm inherently infringe on their RKBA. (What do you say, 2A supporters: want to raise a little ruckus in defense of the gun rights of convicted felons and mentally impaired Americans?)
Non-RKBA Gun Rights
So what might be some of these gun rights that aren’t encompassed by RKBA? Well, for starters, I don’t think the right to carry concealed weapons is included. There may be certain state contexts where open-carry is prohibited and concealed-carry is the only way to effectively assert RKBA outside the home, but in general I don’t see how the core of RKBA is infringed by a requirement that guns be openly carried.
Ammunition restrictions are also not RKBA issues, in my view. Ammunition cannot be withheld entirely, as that would prevent the people from bearing arms in defense of anything (not that an unloaded long gun doesn’t make a mean club; just ask any FPS gamer), but restrictions that prevent certain types of armor-piercing rounds from entering general circulation, or that require serializing ammunition to make it easier to trace, seem allowable under the Second.
Limiting the frequency of handgun purchases and the number that may be bought at any one time also seem not to violate RKBA (one area where I do disagree with the Heller opinion is that I don’t consider the Second Amendment to prevent the government from prohibiting handguns outright; Scalia offers his reasoning on page 57, citing neither federal case law nor any strong principle beside "lots of people use them" to justify invalidating blanket handgun prohibitions. I think a more appropriate argument, though one that would require opening a door that the Court would shudder at touching, would be that the Ninth Amendment--not the Second--protects the ability of persons to engage in common forms of personal defense).
Magazine capacity limits also seem permissible to me, in addition to being good policy (in that they encourage a greater degree of care in firing shots--if it takes all 33 rounds from for a person to effectively defend themselves from an aggressor, shouldn’t we be a little concerned with where those first 32 rounds went?).
Now, to be sure, all of these issues may be fairly discussed as gun rights, and each state may approach them differently, with some enshrining guarantees that protect such practices and products in their own laws. But when we’re discussing the actual, honest to goodness, bona-fide RKBA, I don’t generally see these as included issues.
And, of course, there is one more question on the table:
The Use of Guns as Speech Objects
All this brings me back to the photographs at the top of this entry.
In the Heston photo, that gun is being used exclusively as a political prop at a political rally to make a political point: there is nothing remotely connected to the defense of self, state, or others in Heston’s carrying of that rifle. (I doubt if there was even an ammunition load for it anywhere in that facility.)
The photo of Christopher Braughton could go either way--a person might be reasonably concerned about the risk of violence at a political rally during a contentious debate that carrying a firearm feels necessary for his protection--except that he explicitly told people his point in carrying was to make a political statement, and he was joined by around a dozen others who had organized and coordinated their openly carrying for that same political purpose.
The third photo, taken at the Frankfort rally, is the most difficult to pigeonhole, in my opinion, since the application of the sticker (and the rather theatrical context of the Oath Keepers’ presence at this political rally) makes it look like the rifle is being used far more for political speech purposes than for personal or national defense; however, absent explicit or obvious evidence to that effect, the benefit of the doubt should caution against reflexively typing it as an exercise in political speech.
Now, I don’t see where in the Second Amendment’s language the right to use a gun as a political speech object is protected, especially in light of the Court’s confrontation-oriented opinion in Heller.
Today’s rallies, like the one in Frankfort last month, will feature armed mobs, not mustered for any defensive purpose, but rather to use guns as expressive devices for speech purposes. They aren't motivated by a desire to protect hearth and home, or kin and country--they've come for the express purpose of making a political statement.
Given that no member of the Court--either in the majority or one of the dissenting opinions--extended RKBA to cover guns as props for political speech, and considering that RKBA has never been interpreted in the past to cover such a purpose, I think the question of whether or not armed rallies like the ones taking place today are allowable is a policy call, not governed by any Constitutional imperative. States should be well outside the prohibitions of the Second Amendment (assuming, as I have for purposes of this post, that the Second Amendment will be incorporated against them later this Supreme Court term) to limit armed mass actions, with the exceptions of musters for lawful defensive purposes (gathering to protect the home of a person receiving death threats, guarding a political or religious center from threatened attacks, repelling a force of Redcoats, etc.), and ones where the arms-bearing is not the result of coordinated and intentional action, but the natural and organic outcome of a non gun-oriented rally being attended by persons independently exercising RKBA.
I’ll be the first to admit that drawing the line between carrying for purposes of confrontation and carrying for purposes of speech is tricky (if it’s even practically possible to do at all). As the Frankfort photo above demonstrates, it can be tough to determine if a gun is being used by a speaker to defend himself in case of confrontation at a rally, or if the gun is a mere speech object. Crafting a statute that navigates those shoals without impairing the legitimate protections of RKBA may well prove impossible.
There’s also a paradoxical concern about restricting open-carry as political speech: if people wish to openly carry at a political rally on a subject other than gun rights (for example, if the Westboro Baptist Church jerks decided to take firearms with them for self-defense against counter-demonstrators), then they would be protected under RKBA; but if people wanted to openly carry at a rally specifically meant to endorse open-carry laws or other gun rights (such as today’s events), then they might be treated differently. Is it reasonable to say that the mere fact that you're attending an open carry political event is cause to prevent you from carrying openly? There could easily be an argument made that such a restriction would be a little more like Joseph Heller than Dick Heller.
I don’t expect everyone to agree with my examples or my analysis on the whole, but I would like to get started a conversation about the distinctions between "gun rights" in general and "the Right to Keep and Bear Arms" in particular. The Second Amendment protects a core right from infringement, and while the states may go beyond that core in establishing or recognizing gun rights, they generally do so because they wish to, not because the Constitution requires it. We Second Amendment supporters should remember that not every infringement on gun rights is an infringement on the gun right, RBKA. Only laws that prevent citizens from exercising the basic right to carry weapons for purposes of confrontation--not limits on magazine capacity or ammo types, nor restrictions against short-barreled shotguns or fully automatic pistols, nor even registration requirements or ammunition serializing--should be challenged based on the Second Amendment.
Nor should we allow advocacy of the RKBA to be conflated with advocacy of other gun practices and laws beyond that core, though we may wish to endorse such policies for their own sakes. The right as enshrined in the Constitution is an essential personal and collective liberty. We should protect that limited, specific right with a singular focus. The Second Amendment requires that the constitutional analysis of a law affecting gun ownership, gun possession, gun carrying or gun usage simply investigate whether the core right to own and carry guns for purposes of confrontation is substantively infringed. If that core right remains intact, then we properly should examine the law as a balance of policy interests, not as a constitutional question.
In so doing, we’ll not only have a clearer conversation about just what rights are and aren’t enshrined in the Constitution, but we’ll also have more productive debates over policy preferences, including discussions of relevant statistics and practical concerns raised by proposed legal changes. And establishing RKBA as the core guarantee of the Second Amendment, without continual and inaccurate appeals to the Second Amendment in defense of other gun-related rights, will help narrow the battlefield of ideas enough to ensure that the very heart of our gun ownership tradition remains protected for future generations.
Thanks for reading,