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How Alexander Hamilton solved America's gun problem — 228 years ago

The case for well-regulated militias

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So many Americans are slaughtered by gun violence that even the most sensitive of us has grown numb to some degree. An Islamic extremist turns a gay nightclub into a grisly abattoir and we all know what comes next: nothing.

Regardless of your position on guns, two facts are beyond dispute: The National Rifle Association as a lobby is sufficiently powerful to stop confiscation laws dead in their tracks; and the astounding number of guns in America means even that if every gun manufacturer folded tomorrow, generations of Americans would still live in a nation awash in instruments of death, whether said death is directed at animals, intruders, or innocents.

These two facts were best confirmed by President Obama, who said during a townhall meeting earlier this month that "the notion that I, or Hillary, or Democrats, or whoever you want to choose, are hell-bent on taking away folks' guns is just not true, and I don't care how many times the NRA says it. I'm about to leave office. There have been more guns sold since I've been president than just about any time in U.S. history. There are enough guns for every man, woman, and child in this country and at no point have I ever proposed confiscating guns from responsible gun owners."

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This is true.

So what can be done?

The answer is right there in the the Second Amendment, unchanged since it first flowed from the quill of James Madison: "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."

Ask yourself: For what purpose did the Framers endow militias with such a special place in the Bill of Rights?

The Federalist Papers assert that local militias (as opposed to a "regular army, fully equal to the resources of the country") exist as a formidable check on federal power. In Federalist 46 , Madison writes of the local militia versus a national military:

It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. [Federalist 46]

Bearing arms is "the right of the people " who would make up a state militia, which protects us from national tyranny (even if Madison was overly generous in describing the efficacy of militiamen during the Revolutionary War). In Federalist 29 , published 228 years ago, in 1788, Alexander Hamilton concurs as to why militias are necessary:

If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. [Federalist 29]

People need firearms proficiency to defend against young soldiers of a standing army who might be, in Madison's words, "rendered subservient to the views of arbitrary power." Hamilton also elaborates on ideas that would later lead to the Second Amendment, and particularly the notion of a well-regulated militia. He is unambiguous in Federalist 29 on the point that people have a right to their weapons, and that they need not attend formal military training to be part of a militia, which would be "as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it."

By definition, then, a "well-regulated militia" would no longer seem to include the National Guard, which does require formal and sustained military training by the regular Army. At any rate, in its present incarnation, the Guard — as we saw in Iraq and Afghanistan — is a "state" force in name only. In practice, it is a part-time Army Reserve: a national army that happens also to be used for natural disasters in home states.

Hamilton writes further of the requirements of militia members:

Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. [Federalist 29]

So: If the whole point of the keeping and bearing of arms is to stock "well-regulated militias," why not mandate militia membership in order to own a gun?

Before this suggestion is dismissed out of hand, I assert that the extremist so-called "militias" in Oregon, Ohio, and elsewhere — these people who live on compounds and confront federal agents — are not militiamen but rather insurrectionists . Insurrectionists should be excluded from this discussion. They surrender any claim to the designation "militia" and any place in civil society.

Proper militias would be comprised of sane men and women who own guns and wish to comply with state law. (And that is key: Militias belong entirely to the states, who regulate them accordingly.) Militias might be formed voluntarily based on like-mindedness and geography. Never forgetting their purpose — the common defense — hunters in north Louisiana, for example, might form their own militia — which in practice would exist as a kind of society or association. State regulation of militias would seek to prevent the radicalization of any such group and thus suppress insurrectionists. Likewise, state laws and local governance from within a militia might find better luck in implementing piecemeal the gun reforms that confound federal legislatures.

Recall Hamilton's statement of fact that in order to be "well regulated," a militia should meet once or twice a year. This is key to a militia-based reform (as opposed to an arms-based one) and could easily be accomplished. Precedent exists for large groups of people to assemble for one or two days a year to fulfill a civic obligation, and local governments are quite good at making such assemblies happen, as anyone who has ever been called to jury duty can attest.

Because, as Hamilton writes, formal military training would entail "a real grievance to the people, and a serious public inconvenience and loss," how might these militias spend their two days of annual assembly? How about using those days as opportunities for gun safety training. Why not bring the NRA to said meetings to conduct such training? Their political activities aside, the NRA is peerless with respect to teaching such classes. This also allows militia members to "feel each other out" and police one another, as all communities and associations are wont to do.

As militias would be geography based, members directly and through degrees of separation would run invariably across one another's Facebook profiles and the like. A monster like Dylann Roof, for example, might attract added attention with his pro-apartheid regalia, gun poses, burning American flags, and Confederate flag fixation. His friends might not care — and might well have similar beliefs — but a group of sane gun owners familiar with the consequences of inaction might be more willing to keep an eye on the guy and flag him to local law enforcement. Likewise Omar Mateen — not because of his name, religion, or skin color, but because he beat his wife and was reared by an unhinged video podcaster preaching pro-Taliban propaganda. Anyone who grew up in a small community knows: Fair or not, word of such things gets around. And a militia, as it were, would be just such a community.

This might not have directly prevented the massacres committed by Mateen or Roof or Adam Lanza. The simple disruption (or rather: restoration) of what it means to own a firearm, however, might well prevent future horrors. Gun owners would be given a vested interest in keeping firearms out of the wrong hands: pride in their militia. Can there be a greater dishonor than an atrocity like the massacre in Orlando? It is a national stain, make no mistake. But if the perpetrator was the member of a local militia, the shame becomes local, and with that, a certain urgency to make sure it doesn't happen.

The result of compulsory militia membership for gun owners is actual reform whose design originates directly from the framers of the Constitution. This reform adds oversight, training, and state regulation while keeping the federal government out (militias existing specifically as a check on federal power); preserving the right to keep firearms; contributing perhaps to the security of the United States in some presently unimaginable future conflict at home that involves enemy divisions and open warfare; and has a better chance of seeing law than does confiscation or a repeal of the right to bear arms.

Court precedents work against this argument. But courts change, and new eyes will inevitably be set upon the Second Amendment. Still, I concede that the likelihood of this proposal ever surviving the gauntlet of our legislative process to be slim at best. I would consider a small chance of taking a first step in the right direction, however, to be preferable to the nothing that followed the unimaginable wholesale slaughter of first-graders at Sandy Hook. If the prevailing arguments against gun ownership could survive that unrivaled atrocity, which was conceived by a lunatic and doled out from the barrel of a rifle, then those arguments will simply never gain traction. I mean only to submit other strategies to the public debate. I hope others do as well.

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David W. Brown is coauthor of Deep State (John Wiley & Sons, 2013) and The Command (Wiley, 2012). He is a regular contributor to TheWeek.com , Vox , The Atlantic, and mental_floss . He can be found online here .

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What the Second Amendment really meant to the Founders

Their arguments had far less to do with today's debates than partisans think..

Love it or hate it, the Second Amendment provides the constitutional framework for American gun laws. As with all things constitutional, Americans are adapting 18th-century laws to fit 21st-century lives. But in reality, the concerns of the Founding Fathers had little to do with either side’s position in the modern gun-control debate. None of the issues animating that debate — from “stand your ground” laws to assault weapons bans — entered into the Founders’ thinking.

Yet because both sides in debates about the Second Amendment invoke what the Founders would have thought, it’s important to look at what they actually intended.

1. The Founding Fathers were devoted to the militia.

Read the debates about the Constitution and the Bill of Rights, and the militia’s importance leaps off the page. Alexander Hamilton, writing in the Federalist Papers, called a well-regulated militia “the most natural defense of a free country.” His anti-Federalist critics agreed with the need for a citizens’ militia, writing that “a well regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”

Their disagreement was over how best to ensure that the militia was maintained, as well as how to divide up the roles of the national government vs. state governments. But both sides were devoted to the idea that all citizens should be part-time soldiers, because both sides believed a standing army was an existential threat to the ideas of the revolution.

2. The amendment’s primary justification was to prevent the United States from needing a standing army.

Preventing the United States from starting a professional army, in fact, was the single most important goal of the Second Amendment. It is hard to recapture this fear today, but during the 18th century few boogeymen were as scary as the standing army — an army made up of professional, full-time soldiers.

By the logic of the 18th century, any society with a professional army could never be truly free. The men in charge of that army could order it to attack the citizens themselves, who, unarmed and unorganized, would be unable to fight back. This was why a well-regulated militia was necessary to the security of a free state: To be secure, a society needed to be able to defend itself; to be free, it could not exist merely at the whim of a standing army and its generals.

The only way to be both free and secure was for citizens to be armed, organized and ready to defend their society. The choice was a stark one: a standing army or a free nation.

3. The authors of the Bill of Rights were not concerned with an “individual” or “personal” right to bear arms. 

Before the landmark 2008 Supreme Court case  District of Columbia v. Heller , courts had ruled that the right of individual citizens to bear arms existed only within the context of participation in the militia. In Heller, the Supreme Court overturned that precedent, delivering gun rights advocates their biggest legal victory.

This was not, however, a return to an “original understanding” of the Second Amendment, as Justice Antonin Scalia claimed for the majority. It’s not that the Founding Fathers were against the idea of an individual right to bear arms. It just was not an issue that concerned them.

Again, the militia was all important: The men writing the Bill of Rights wanted every citizen to be in the militia, and they wanted everyone in the militia to be armed. If someone was prohibited from participating in the militia, the leaders of the Founders’ generation would  not  have wanted them to have access to weapons. In fact, the 18th-century regulations that required citizens to participate in the militia also prohibited blacks and Indians from participating as arms-bearing members.

4. The Founding Fathers were very concerned about who should, or should not, be armed.

These restrictions on militia membership are critically important to understand. Because despite the words of the Second Amendment, 18th-century laws did infringe on Americans’ right to bear arms.

Laws rarely allowed free blacks to have weapons. It was even rarer for African Americans living in slavery to be allowed them. In slave states, militias inspected slave quarters and confiscated weapons they found. (There were also laws against selling firearms to Native Americans, although these were more ambiguous.)

These restrictions were no mere footnote to the gun politics of 18th-century America. White Americans were armed so that they could maintain control over nonwhites. Nonwhites were disarmed so that they would not pose a threat to white control of American society.

The restrictions underscore a key point about militias: They were more effective as domestic police forces than they were on the battlefield against enemy nations; and they were most effective when they were policing the African American population.

5. Eighteenth-century Americans tolerated a certain amount of violence and instability, as long as it came from other white Americans.

During the 18th century, insurrectionary groups such as the Carolina Regulators and vigilante groups such as Pennsylvania’s Paxton Boys showed that Colonial governments could not simply issue laws and count on the people to obey them. (As did, one might add, the American Revolution.) Shay’s Rebellion in 1787 and the Whiskey Rebellion in 1791 showed that those problems would not go away with the arrival of the new republic. Including all citizens in the militia and relying on that militia to enforce the laws meant that issues which divided the citizenry also divided the militia. When disagreements over political issues turned violent, the government would not necessarily enjoy the balance of power over citizens who, as militia members, were trained and armed.

Those events also showed a pattern that emerged during the 18th century: Americans were willing to tolerate a significant degree of instability and violence on the part of white Americans. The Paxton Boys, for instance, murdered 20 Conestoga Indians who had been living peacefully with their Pennsylvanian neighbors for some time. Though the governor issued warrants for their arrest, and Benjamin Franklin called the killers a “disgrace of their country and their colour,” no Paxton Boys were ever prosecuted.

The Whiskey Rebellion was an armed uprising against the national government. In its aftermath, only two rebels were convicted of treason, and President George Washington pardoned them both. Indians who attacked whites, and enslaved peoples who resisted, however, received no such indulgence.

Today’s Second Amendment

Anyone wishing for a return to an original meaning of the Second Amendment — where no one was a professional soldier, but everyone would be required to participate in the militia — would find themselves far from the political mainstream.

America’s standing army is now the most powerful fighting force in world history. The National Guard still exists as a citizens’ militia, but participation is a far cry from the Founders’ vision of participation by all citizens. Meanwhile, the Army and the militia have diversified in ways which no one in the 18th century could have imagined.

What remains, though, is the pattern of what Americans will and will not tolerate. In the centuries since the Bill of Rights became law, the strictest gun-control laws have been aimed — sometimes explicitly, sometimes not — at keeping African Americans from arming themselves. Americans have been eager to disarm blacks, but hesitant to disarm whites.

California’s gun-control laws, for instance, began as a reaction to the Black Panthers’ armed patrols and open carry. Yet, when self-proclaimed militiamen engaged in armed resistance to law enforcement at the Bundy ranch in 2014, there was no similar call for new gun laws, and a significant portion of the American political establishment initially expressed support for their actions.

Meanwhile, the nation continues to tolerate a level of gun violence from its citizens unparalleled in other wealthy nations. Eighteenth-century militias were unstable and unpredictable; American gun violence in the 21st century has been every bit as unstable and unpredictable and, given the improvements in weaponry, far more fatal. In three of the most recent mass shootings — the high school in Parkland, Fla., the church in Sutherland Springs, Tex., and Las Vegas — three men killed a total of 101 people and injured hundreds more, a level of carnage that would have been impossible with the weapons available during the 18th century.

Despite these body counts, and despite the seeming inevitability of future tragedies like these, there have been no new national laws to limit citizens’ access to high-powered weapons. Some states have enacted such restrictions, but other states have moved in the opposite direction, loosening limits on citizens’ access to firearms.

The United States still seems willing to tolerate a significant degree of instability and violence on the part of white American men, the demographic group responsible for the majority of mass shootings. The United States also seems willing to tolerate daily rates of gun violence that surpass all but the worst mass shootings, in large part because most homicide victims are people of color.

Again, this level of carnage could not have been foreseen by the men who wrote the Constitution and the Bill of Rights. As Americans, though, we still live our lives and write our laws within the framework that those men left us, including the Second Amendment. At its best, the Second Amendment was a commitment to citizen participation in public life and a way to keep military power under civil control. At its worst, it was a way for whites to maintain their social domination.

In today’s America, the echoes of 18th-century racial politics still weigh down our society, while the new republic’s commitment to citizen participation is nowhere to be found.

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The first amendment, interpretation & debate, the second amendment, matters of debate, common interpretation, the reasonable right to bear arms, not a second class right: the second amendment today.

by Nelson Lund

University Professor at George Mason University University Antonin Scalia School of Law

by Adam Winkler

Professor of Law at University of California Los Angeles Law School

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement of the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald , they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a “well regulated Militia,” suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.   

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulated—and regulated “well.” This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures. 

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that “reasonable” gun laws—those that don’t completely deny access to guns by law-abiding people—are constitutionally permissible. For 150 years, this was the settled law of the land—until Heller .

Heller , however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendment’s ratification.

In the years since Heller , the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited. 

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If that’s enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Court’s specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

•           District of Columbia v. Heller (2008) is one example. The “right of the people” protected by the Second Amendment is an individual right, just like the “right[s] of the people” protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

•           McDonald v. City of Chicago (2010) was also an easy case under the Court’s precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are “deeply rooted in this Nation’s history and tradition.” The right to keep and bear arms clearly meets this test.

•           The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

•           Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

•           Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called “assault rifles,” for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called “freedom fries.”

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. What’s more, the most vulnerable people—including women, the elderly, and those who live in high crime neighborhoods—are among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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The Founders and the Sanctity of Gun Ownership

By michael adelberg | published 2/20/2018 83.

The signing of the U.S. Constitution in Philadelphia. (Library of Congress)

The shrillness of the gun debate is disappointing. And I am particularly disappointed by the way the “Founders” are sometimes invoked as private property libertarians who supported unrestricted gun ownership. In over twenty years of writing about the Revolutionary Era, I’ve reviewed literally thousands of documents—local and state government records and account books, militia returns and orders, veterans’ pension applications and Continental Army papers, court dockets and case papers, estate inventories and personal papers, and hundreds of pages of newspaper. So I feel like I have a pretty good sense for how the founding generation governed—particularly in lower New York and New Jersey. What follows is a short discussion of the governing record of the Founders with respect to regulating firearms.

The sanctity of gun ownership during the revolutionary war

When governing in the region I’ve studied, the Founders showed little sanctity for gun ownership. From its first days as a proto-national government, the Second Continental Congress advised States to disarm individuals suspected of disloyalty and to impound goods, if necessary, for the good of the Army. Local Committees of Safety, acting as de facto county governments prior to the first post-independence elections, assembled militias not to fight the British, but to impound useful war materials—including guns, but also livestock, foodstuffs, liquor, forage, boats, and wagons.

George Washington’s first action of 1776 was a campaign to confiscate the private arms of the citizens in Queens Co., New York. The impoundments occurred without trial, though the Army did provide receipts, which were redeemable for (nearly worthless) Continental currency. Meanwhile, local militias in New Jersey confiscated arms and livestock from people living along the Jersey shoreline. In one county, the militia was called out specifically to confiscate guns from African-Americans, both free and slave. These were not actions taken against a handful of traitors, but large actions against neighborhoods of people.

Guns were confiscated from individuals without due process. Firearms were treated similarly to other kinds of private property impounded for the war effort. In a region under British invasion, the need to win a war trumped individual property rights—including the right to own a gun.

Related Content:    People Should Prove They Have Earned the Right to Have a Gun

The federalist papers.

A decade later, as the Federalists attempted to make the Constitution more attractive to a skeptical public, they added a Bill of Rights (ten amendments to the Constitution) to lessen fears that the Constitution would become “an engine of tyranny”.

The 2nd Amendment to the Constitution, in its entirety, reads:

“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.”

People will argue forever about the construction of this sentence and its meaning, but the opening phrase, “a well-regulated militia,” deserves consideration.

Minute Man Statue, Lexington, Mass (Wikimedia)

Drawing from the Revolutionary experience, the Founders believed that a local militia, properly officered by community leaders, was essential to resisting external threats and a potentially oppressive central government. The 2nd Amendment spoke to the Colonial and Revolutionary experience.

The Founders did not make detailed or public arguments regarding private gun ownership as a unique right. The Federalist Papers, written by the Founders to explain the benefits of the Constitution, discuss different rights in great detail: Fair treatment before the law, the right to vote, freedom of religion and the press, etc. To the degree firearms are mentioned, it is nearly always in the context of the right of Americans to organize into local militias to resist political tyranny and protect the nation from external threats.

Federalist #29 declares “ it is a matter of the utmost importance that a well-digested plan should be adopted for the proper establishment of the militia “; and Federalist #46 discusses the strength of a militia “ with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties .” However, The Federalist Papers—85 essays and 200,000 words, many of which are devoted to articulating the rights of citizens—do not dwell on firearms as a unique property right.

Gun ownership in the early republic

The first president permitted the seizure of private property. Federalized militia—more or less led by Secretary of Treasury Alexander Hamilton—confiscated a wide variety of private property from the “Whiskey rebels” of Pennsylvania (including guns). The federal government was willing to take goods in the name of restoring public order and ask questions later.

In the new nation, families often owned a gun, but it was not ubiquitous. By the late 1700s, long settled parts of the country were fully agrarian and a century removed from the frontier. The farm family estate inventories I’ve seen reveal that many families owned a gun, and many did not. And gun ownership was even less common among the large numbers of poor “cottagers” and landless laborers who drifted between agricultural and maritime pursuits.

To the British, Americans were indeed “ a people numerous and armed “—but that statement is relative to the population of Britain. It was hardly an absolute.

The limits of privately-owned weaponry

The common guns of the late 1700s had limited range, limited accuracy, and a cumbersome reloading process. A man with a saber on horseback was more dangerous to a crowd of people. As no public menace was posted by one or a few guns, the Founders saw no need for “gun control”. However, local governments owned the really dangerous stuff. Casks of gunpowder, artillery, and anti-personnel weapons (i.e., grapeshot) were inventoried, secured by commissioned officers, and kept in guarded public magazines. Even the most powerful men of the day did not keep private stores of dangerous weapons. Washington’s estate at Mt. Vernon, for example, had nothing more dangerous than a small number hunting rifles. Leading merchants like John Hancock and Robert Morris purchased large quantities of war materials and then turned them over to state and local governments.

I do not mean to suggest the Founders were anti-gun or anti-private property. I do mean to suggest that they were pragmatic and, with the exception of a few cosmopolitans, locally-focused. Private property rights for guns or nearly anything else was fine unless it threatened the good of the community as they defined it based on the problem of the day. When that happened, private property rights—of all types—were sacrificed.

In a few personal letters, Founders speak glowingly of the importance of an armed citizenry. Washington’s quote about guns being “ liberty’s teeth ” is frequently cited. These quotes can be interpreted differently, but one read is that they simply affirm the importance of a “well-regulated militia” (led by, of course, the Founders and their kinsmen).

It also must be remembered that the Founders were prodigious writers who tested ideas in their letters, much as we do in emails today. Thomas Jefferson, for example, wrote letters in which he stated that because the Constitution did not give the Executive the power to acquire foreign territory, the Louisiana Purchase was unconstitutional. But he still signed the deal. That is why I focus on governing actions and public documents in this essay, rather than pulling favorite selected quotes from personal letters.

Keep the founders out of it

When it comes to gun control, argue whatever position you want. But maybe we should keep the Founders out of it. It is inconsistent with their governing record to believe that they were supporters of unrestricted private firearms.

P.S. I like skeet shooting with my boys. I don’t hunt, but a couple of my friends do, and it’s a nice part of their lives. School shootings like the recent one in Florida make me sad, but I am against curtailing these long-established activities.

This post was originally published on 11/01/15. It has been reviewed and updated by the author and republished on 02/20/18 because of its unfortunate timeliness.

• public & population health
• violence & aggression

Michael Adelberg

Website: http://michaeladelberg.com/.

By day, Michael Adelberg is a health policy wonk in Washington, DC; by evening, he is an historian of the American Revolution; about midnight, he turns into a fiction writer and reviewer. Sleep is overrated.

Adelberg is the author of publications across all three interests, including: the award-winning American Revolution in Monmouth County: Theatre of Spoil and Destruction (History Press, 2010), and three well-reviewed novels: A Thinking Man's Bully (The Permanent Press, 2011), The Razing of Tinton Falls (History Press, 2011), and Saving the Hooker (The Permanent Press, 2014). Visit his website to learn more about him and his publications.

@ Michael Adelberg – American Revolution Historian

Do you know what the colors of the King were/are? What the first national American flag was? What the ensign for the English Naval Tudor was (which existed long before the 13 colonies). What shape the Union Jack forms? What the definition of a state (estate) is? What the definition of “The Crown” is? And who owns, controls and amends United States Social Security?

Find the answer to those questions and you’ll know exactly who really won the revolution. Trickery & deceit are the tools of lawyers and politicians.

In the words of a real patriot and freedom fighter who went against the grain…

“What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” -Patrick Henry

Howard Zinn in the first few chapters of “A People’s History of the United States” makes it clear that moneyed property owners won the Revolution and most importantly defined their rule of the new nation during the several decades afterword, as the Constitution came into being and the government began to levy taxes, form a permanent Navy and Army. That was when they made sure to keep women, servants, blacks, slaves, and those who did not own significant property out of the business of government. None of the above could become lawyers or judges or other officers of the court, nor could they run for elected office. Our recent experience with fears of a runaway Electoral College harkens back to the Founding Fathers desire to retain control of the office of the President (and the Senate) in the hands of the property class. It took a Constitutional amendment to get Senators elected by the people instead of selected by the legislature of the states. Many people rail against the huge percent of the US budget spent by the military-industrial-corporate-legislative complex, yet for some reason our entire government is unable to force even one member of the Pentagon to account for what they spend and when they spend it.

Yet despite clearly showing that the moneyed class ‘won’ the American Revolution and also ‘won’ the government that was formed after, neither the book nor it’s author is popular with the class of people who are harmed most by those same moneyed principles. It truly is a bizarro world nowadays, where right is wrong, wrong is right, and even with competing teams of lawyers trying to tell the public which way to lean, it’s still hard to guess which way is up.

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Second Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The Second Amendment, often referred to as the right to bear arms, is one of 10 amendments that form the Bill of Rights, ratified in 1791 by the U.S. Congress. Differing interpretations of the amendment have fueled a long-running debate over gun control legislation and the rights of individual citizens to buy, own and carry firearms.

Right to Bear Arms

The text of the Second Amendment reads in full: “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.” The framers of the Bill of Rights adapted the wording of the amendment from nearly identical clauses in some of the original 13 state constitutions.

During the Revolutionary War era, “militia” referred to groups of men who banded together to protect their communities, towns, colonies and eventually states, once the United States declared its independence from Great Britain in 1776.

Many people in America at the time believed governments used soldiers to oppress the people, and thought the federal government should only be allowed to raise armies (with full-time, paid soldiers) when facing foreign adversaries. For all other purposes, they believed, it should turn to part-time militias, or ordinary civilians using their own weapons.

State Militias

But as militias had proved insufficient against the British, the Constitutional Convention gave the new federal government the power to establish a standing army, even in peacetime.

However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression. They feared that Congress might abuse its constitutional power of “organizing, arming and disciplining the Militia” by failing to keep militiamen equipped with adequate arms.

So, shortly after the U.S. Constitution was officially ratified, James Madison proposed the Second Amendment as a way to empower these state militias. While the Second Amendment did not answer the broader Anti-Federalist concern that the federal government had too much power, it did establish the principle (held by both Federalists and their opponents) that the government did not have the authority to disarm citizens.

Well-Regulated Militia

Practically since its ratification, Americans have debated the meaning of the Second Amendment, with vehement arguments being made on both sides.

The crux of the debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a collective right that should be exercised only through formal militia units.

Those who argue it is a collective right point to the “well-regulated Militia” clause in the Second Amendment. They argue that the right to bear arms should be given only to organized groups, like the National Guard, a reserve military force that replaced the state militias after the Civil War .

On the other side are those who argue that the Second Amendment gives all citizens, not just militias, the right to own guns in order to protect themselves. The National Rifle Association (NRA) , founded in 1871, and its supporters have been the most visible proponents of this argument, and have pursued a vigorous campaign against gun control measures at the local, state and federal levels.

Those who support stricter gun control legislation have argued that limits are necessary on gun ownership, including who can own them, where they can be carried and what type of guns should be available for purchase.

Congress passed one of the most high-profile federal gun control efforts, the so-called Brady Bill , in the 1990s, largely thanks to the efforts of former White House Press Secretary James S. Brady, who had been shot in the head during an assassination attempt on President Ronald Reagan in 1981.

District of Columbia v. Heller

Since the passage of the Brady Handgun Violence Prevention Act, which mandated background checks for gun purchases from licensed dealers, the debate on gun control has changed dramatically.

This is partially due to the actions of the Supreme Court , which departed from its past stance on the Second Amendment with its verdicts in two major cases, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

For a long time, the federal judiciary held the opinion that the Second Amendment remained among the few provisions of the Bill of Rights that did not fall under the due process clause of the 14th Amendment , which would thereby apply its limitations to state governments. For example, in the 1886 case Presser v. Illinois , the Court held that the Second Amendment applied only to the federal government, and did not prohibit state governments from regulating an individual’s ownership or use of guns.

But in its 5-4 decision in District of Columbia v. Heller , which invalidated a federal law barring nearly all civilians from possessing guns in the District of Columbia, the Supreme Court extended Second Amendment protection to individuals in federal (non-state) enclaves.

Writing the majority decision in that case, Justice Antonin Scalia lent the Court’s weight to the idea that the Second Amendment protects the right of individual private gun ownership for self-defense purposes.

McDonald v. Chicago

Two years later, in McDonald v. Chicago , the Supreme Court struck down (also in a 5-4 decision) a similar citywide handgun ban, ruling that the Second Amendment applies to the states as well as to the federal government.

In the majority ruling in that case, Justice Samuel Alito wrote: “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller , we held that individual self-defense is ‘the central component’ of the Second Amendment right.”

Gun Control Debate

The Supreme Court’s narrow rulings in the Heller and McDonald cases left open many key issues in the gun control debate.

In the Heller decision, the Court suggested a list of “presumptively lawful” regulations, including bans on possession of firearms by felons and the mentally ill; bans on carrying arms in schools and government buildings; restrictions on gun sales; bans on the concealed carrying of weapons; and generally bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”

Mass Shootings

Since that verdict, as lower courts battle back and forth on cases involving such restrictions, the public debate over Second Amendment rights and gun control remains very much open, even as mass shootings became an increasingly frequent occurrence in American life.

To take just three examples, the Columbine Shooting , where two teens killed 13 people at Columbine High School, prompted a national gun control debate. The Sandy Hook shooting of 20 children and six staff members at the Sandy Hook Elementary School in Newtown, Connecticut in 2012 led President Barack Obama and many others to call for tighter background checks and a renewed ban on assault weapons.

And in 2017, the mass shooting at country music concert in Las Vegas in which 60 people died (to date the largest mass shooting in U.S. history, overtaking the 2016 attack on the Pulse nightclub in Orlando, Florida ) inspired calls to restrict sales of “bump stocks,” attachments that enable semiautomatic weapons to fire faster.

On the other side of the ongoing debate of gun control measures are the NRA and other gun rights supporters, powerful and vocal groups that views such restrictions as an unacceptable violation of their Second Amendment rights.

Bill of Rights, The Oxford Guide to the United States Government . Jack Rakove, ed. The Annotated U.S. Constitution and Declaration of Independence. Amendment II, National Constitution Center . The Second Amendment and the Right to Bear Arms, LiveScience . Second Amendment, Legal Information Institute .

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Founders Online --> [ Back to normal view ]

The federalist no. 28, [26 december 1787], the federalist no. 28 1.

[New York, December 26, 1787]

To the People of the State of New-York.

THAT there may happen cases, in which the national government may be necessitated to resort to force, 2 cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise 3 in all societies, however constituted; that seditions and insurrections are unhappily maladies as inseparable from the body politic, as tumours and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries 4 of those political doctors, whose sagacity disdains the admonitions of experimental instruction.

Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression: and the natural presumption is, that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government: Regard to the public peace, if not to the rights of the Union, would engage the citizens, to whom the contagion had not communicated itself, to oppose the insurgents: And if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.

If on the contrary the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing 5 the disorders within that State; 6 that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. 7 Suppose the State of New-York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont; 8 could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility that the national government might be under a like necessity in similar extremities, be made an objection to its existence? Is it not surprising that men, who declare an attachment to the union in the abstract, should urge, as an objection to the proposed constitution, what applies with tenfold weight to the plan for which they contend; and what as far as it has any foundation in truth is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?

Let us pursue this examination in another light. Suppose, in lieu of one general system, two or three or even four confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these confederacies? Would not each of them be exposed to the same casualties; and, when these happened, be obliged to have recourse to the same expedients for upholding its authority, which are objected to a government for all the States? Would the militia in this supposition be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must upon due consideration acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an intire separation of the States, 9 there might sometimes be a necessity to make use of a force constituted differently from the militia to preserve the peace of the community, and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.

Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, 10 that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society. *

If the representatives of the people betray their constituents, there is then no resource 12 left but in the exertion of that original right of self-defence, which is paramount to all positive forms of government; and which, against the usurpations 13 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 entrusted with supreme power became usurpers, the different parcels, subdivisions or districts, of which it consists, having no distinct government in each, can take no regular measures for defence. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, cloathed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of territory, the more difficult will it be for the people to form a regular or systematic plan of opposition; and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements; and the military force in the possession of the usurpers, can be more rapidly directed against the part where the opposition has begun. In this situation, there must be a peculiar coincidence of circumstances to ensure success to the popular resistance.

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. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small; and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power; the General Government will at all times stand ready to check the usurpations of the state governments; and these will have the same disposition towards the General Government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other, as the instrument of redress. How wise will it be in them by cherishing the Union to preserve to themselves an advantage which can never be too highly prised!

It may safely be received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men as of the people at large. The Legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty.

The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. 14 And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the fœderal army should be able to quell the resistance of one state, the distant states would be able 15 to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself its efforts would be renewed and its resistance revive.

We should recollect that the extent of the military force must at all events be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army: and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive, that the fœderal Government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire; who are in a situation, through the medium of their state governments, to take measures for their own defence with all the celerity, regularity and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

The [New York] Independent Journal: or, the General Advertiser , December 26, 1787. This essay appeared on December 28 in both New-York Packet and The [New York] Daily Advertiser . On January 2, 1788, it appeared in The New-York Journal, and Daily Patriotic Register .

1 .  For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 .  “under the necessity of resorting to force” substituted for “necessitated to restore to force” in Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends .

3 .  “exist” substituted for “arise” in McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends and Hopkins.

4 .  “reverie” substituted for “reveries” in Hopkins.

5 .  “suppressing” substituted for “repressing” in McLean and Hopkins.

6 .  See essay 6, note 15 .

7 .  See essay 6, note 28 .

8 .  See essay 7, note 9 .

9 .  “or as many unconnected governments as there are states” substituted for “or even” through “states” in McLean and Hopkins.

10 .  “to say” inserted at this point in McLean and Hopkins.

11 .  The Federalist essays were, of course, predicated on the assumption that the ultimate security of the rights of the people lay in the fact that power was in the hands of their representatives. See, for example, essay 17 .

12 .  In the newspaper, “source”; “resource” was substituted in McLean and Hopkins.

13 .  “usurpation” substituted for “usurpations” in Hopkins.

14 .  “enemy” substituted for “power” in Hopkins.

15 .  “have it in their power” substituted for “be able” in Hopkins.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

*   Its full efficacy will be examined hereafter. 11

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Federalism and Firearms: Gun Control Policies and the Intractability of Gun Violence in America

Since the beginning of 2023, the United States has seen over 100 mass shootings. In 2022, death by firearm in the United States became the leading cause of mortality among children and teens ages 0 to 18, surpassing motor vehicle collisions, suffocation, drowning, and birth abnormalities. Only two years prior, in 2020, the CDC reported the highest number of deaths by firearm in U.S. history and noted that “young people under 30 were nearly 10 times more likely to die by a firearm than from COVID-19.”

In response to these developments, President Joseph Biden recently signed an executive order on March 14, 2023 that primarily expands universal background checks and increases the likelihood that dangerous persons will be “red-flagged” to prevent their ownership of a firearm. And yet, concurrently, many U.S. states — particularly in the American hinterland and the Deep South — have sought to make firearms access even easier. In Texas, lawmakers have removed the requirement for handgun owners to have a permit. Nebraska and other states are expected to follow suit in the coming months. Although such executive orders and legislative actions frequently provide considerable fodder for the perennial debate about gun control policies in America, the intractable paradox of solving gun violence in a decentralized federal system is rarely discussed.

For many external observers outside the United States, the country’s contradictory inclinations to regulate firearms on the federal level and the simultaneous pushback against doing so by states at the lower level can be mystifying. In a sense, the national intransigence over gun control exemplifies the inherent tension between centralization and decentralization in a federal system of government. Although the U.S. federal government has passed stringent firearms restrictions, a number of U.S. states openly oppose such federal policy on the grounds that their laxer gun control laws are an accurate reflection of the heterogeneity in preferences from state to state. The State of Missouri, for example, passed a law prohibiting the enforcement of federal gun control laws, and state legislators in Iowa and Ohio have proposed similar bills.

Amid this continued tension between the federal government and various state governments, a paradox emerges: Whereas states with lax gun control laws benefit by their proximity to neighboring states with stricter gun laws, states such as California and Illinois that do enforce federal gun control laws and enact their own stricter gun laws nevertheless suffer from elevated gun violence due to spillover effects from adjacent states with weaker laws. For example, Illinois with its restrictive firearms legislation still experiences high-rates of gun violence due to bordering neighboring states with lax gun control laws. In Illinois’ largest city of Chicago, four out of five guns used in Chicago crimes are imported from such distant states such as Georgia, Alabama, Texas, and Mississippi.

A 2018 study published by the Journal of Urban Health examined both firearms laws and the interstate transfer of weapons in all fifty U.S. states from 2006 to 2016. The authors noted that the overwhelming majority of firearm-involved crimes in states with strict gun control laws such as Illinois, New Jersey, and Massachusetts involved weapons originating from distant states with lax gun control regulations. (Revealingly, firearm-involved crimes in states with lax gun control laws typically featured weapons purchased in-state.)

Even remote U.S. territories are no exception to the spillover effects of lax gun control laws. Located over a thousand miles from the U.S. mainland, the tropical island of Puerto Rico in the Caribbean has some of the strongest gun control laws in the U.S. and yet suffers from endemic gun violence due to firearms imported from states with lax gun control laws such as Georgia, Florida, and Texas. Even if Georgia and Florida tightened their gun control laws, the number of guns imported from Texas would commensurately increase to fill the vacuum.

Due to the spillover effects between U.S. states, it appears that the pandemic of gun violence in the United States cannot be easily solved in a decentralized system. If the country had a more centralized form of government, the adherence of all U.S. states to federal gun control laws would greatly attenuate this pandemic, but likely at the peril of civil unrest in particular states due to heterogeneity in preferences. The decentralized nature of the U.S. federal system of government also allows for the capture of particular states by local interest groups. In states like Texas, for example, although nearly 60% of state residents oppose unlicensed carry, the Texas legislature passed a law which made it legal for anyone over 21 or over to carry a handgun without a permit largely due to the influence of the Texas State Rifle Association which donated considerable campaign contributions to state lawmakers.

As long as the United States remains a patchwork quilt of disparate gun control laws which vary state-by-state and as long as many state legislatures remain controlled by interest groups, the likelihood of resolving the national pandemic of gun violence is bleak. Even if 30 of 50 U.S. states enacted stricter gun control laws, gun imports from the remaining states will likely offset these stricter regulations, and the death toll will continue to rise. Hence, Biden’s latest executive order expanding background checks and red-flagging dangerous gun-owners will likely not have any considerable effect on slowing the ongoing pandemic of gun violence. Given that the conservative-leaning U.S. Supreme Court can invalidate any meatier executive order signed by Biden to reduce gun violence in America and given that the U.S. Court of Appeals for the Fifth Circuit recently blocked any significant gun control legislation at the federal level, the only remaining option is for coordinated action undertaken by all U.S. states. Unfortunately, it seems most states — and most Americans — have not learned much since Benjamin Franklin warned in 1776 at the signing of the Declaration of Independence that “we must all hang together, or assuredly we shall all hang separately.”

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16 Oct Gun Control and Federalist #46

Gun Control and Federalist #46: Does Madison argue for an expansive or restrictive gun control regime?

Since the Umpqua shooting in Oregon, gun control has been back in the news. President Obama’s address the following day seized the moment for a political jab at gun control opponents, and to celebrate the cause of more gun controls. Then, this week’s Democratic Party presidential primary debate also featured an exchange on the issue, and it was a leading topic on facebook and twitter .

The 2008 landmark second amendment decision in District of Columbia v. Heller offered competing histories to justify both majority and minority opinions, but what about the Federalist Papers themselves. Do the Federalist Papers offer any guidance about what the Founders thought the new constitution might mean for gun control?

James Madison, recognized as the author of Federalist #46 , is credited by gun control opponents of making the case for an armed citizenry militia, to stand in opposition to the federal government if need be. Do his words have bearing for today’s gun control debate?

Madison wrote:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

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Stephen Breyer to the Supreme Court Majority: You’re Doing It Wrong

By Louis Menand

One day in 1993, Stephen Breyer , then the chief judge of the Court of Appeals for the First Circuit, which sits in Boston, was riding his bicycle in Harvard Square when he was hit by a car. He was taken to Mount Auburn Hospital with broken ribs and a punctured lung. While he was recovering, he was visited by three White House officials. They had flown up to interview him for a possible nomination to the United States Supreme Court.

The vetting went well enough, and Breyer was invited to Washington to meet the President, Bill Clinton . Breyer’s doctors advised against flying, so he took the train, in some discomfort. The meeting with Clinton did not go well. According to Jeffrey Toobin’s “ The Nine ,” a book about the Supreme Court, Clinton found Breyer “heartless.” “I don’t see enough humanity,” he complained. “I want a judge with soul.” Breyer was told to go home. They would call.

He knew that things had gone poorly. “There’s only two people who aren’t convinced I’m going to be on the Supreme Court,” he told a fellow-judge. “One is me and the other is Clinton.” He was right. The phone never rang. The seat went to Ruth Bader Ginsburg .

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Ginsburg was a cool customer, too, but she knew which buttons to push. In her interview with Clinton, she talked about the death of her mother and about helping her husband get through law school after he was stricken with testicular cancer. Clinton loved catch-in-the-throat stories like that. Ginsburg was confirmed by the Senate 96–3.

A year went by, there was another Supreme Court vacancy, and Breyer was again in the mix. His candidacy was pushed by Ted Kennedy, with whom he had worked as the chief counsel of the Senate Judiciary Committee when Kennedy was its chair. Clinton really wanted to nominate his Secretary of the Interior, Bruce Babbitt, but Babbitt faced opposition from senators in Western states, and Breyer seemed politically hypoallergenic.

So Breyer was chosen. Still, the White House did not do him any favors. Clinton’s indecisiveness was an ongoing story in the press—it had taken him eighty-six days to pick Ginsburg—and the news coverage made it plain that Breyer was not his first or even his second choice. The White House counsel, Lloyd Cutler, told reporters that, of the candidates being considered, Breyer was “the one with the fewest problems.”

Clinton announced the selection without even waiting for Breyer to come down from Boston. When Breyer did show up, a few days later, he said, “I’m glad I didn’t bring my bicycle down.” Famous last words. In 2011, he broke his collarbone in another biking accident near his home in Cambridge, and in 2013 he fractured his right shoulder and underwent shoulder-replacement surgery after crashing his bicycle near the Korean War Veterans Memorial, on the National Mall. He was seventy-four. You have to give him credit. He gets right back on the horse.

Since his appointment to the Court, Breyer has published several books on his jurisprudential views. His latest is “ Reading the Constitution: Why I Chose Pragmatism, Not Textualism ” (Simon & Schuster). It sums up his frustration with the court that he just stepped down from.

Clinton was not the only person who read Breyer as a technocrat. People felt he lacked a quality that Clinton could apparently summon at will—empathy. “He’s always been smarter than most of those around him,” the Yale constitutional-law professor Akhil Amar explained to a reporter, “so he’s had to learn how to get along with other people.”

That was his reputation at Harvard Law School, too, where he taught administrative law for many years before becoming a judge. “Breyer’s basic social instincts are conservative,” a Harvard colleague, Morton Horwitz, told the Times . “His legal culture is more liberal, and his very flexible pragmatism will enable him to give things a gentle spin in a liberal direction. But he’s a person without deep roots of any kind. He won’t develop a vision. . . . The words ‘social justice’ would somewhat embarrass him.”

It’s true that Breyer has a professorial presentation. He is cosmopolitan and erudite. He travels to other countries and is interested in their legal systems; reporters like to drop the fact that he has read “À la Recherche du Temps Perdu,” in French, twice. He is also, for a judge, relatively wealthy. His wife, Joanna Hare, a clinical psychologist at Dana-Farber, is the daughter of an English viscount.

Before joining the Court, Breyer showed few signs of being a social-justice warrior. He has, like the President who appointed him, neoliberal inclinations. He was instrumental in creating sentencing guidelines for federal judges that he later conceded were too rigid. He wrote a book on regulatory reform. And one of his proudest legislative achievements was working with Kennedy to deregulate the airline industry.

But he has an admirable temperament. Toobin called him “the sunniest individual to serve on the Supreme Court in a great many years.” Seated on a bench next to a lot of intellectual loners— Antonin Scalia , Clarence Thomas , David Souter , Ginsburg herself—Breyer became a consensus seeker, if not always a consensus builder. He believed in reasoned discourse.

He had also learned, from watching Kennedy do business in the Senate, that compromise is how you get things done in government, and he understood that on an ideologically divided court the power is in the middle. Being a split-the-difference centrist, like his predecessor Lewis Powell, and like the Justice he was closest to, Sandra Day O’Connor , suited his personality, too.

Breyer loved the job and was reluctant to announce his retirement, throwing liberals who feared another R.B.G. fiasco into a panic. He stepped down at the end of the 2021-22 term, in time for President Joe Biden to put one of Breyer’s former clerks, Ketanji Brown Jackson , on the Court. Breyer is now back where he started, as a professor of administrative law at Harvard. Happily for the law school, there are now many dedicated bike lanes in Cambridge.

Horwitz was not entirely right about what George H. W. Bush called “the vision thing.” Beneath Breyer’s pragmatic, let-us-reason-together persona is the soul of a Warren Court liberal. The Warren Court is where Breyer’s judicial career began. After graduating from Harvard Law School, in 1964, he clerked for Justice Arthur Goldberg. It was, he said, “a court with a mission.” The mission was to realize the promise of Brown v. Board of Education.

Brown is Breyer’s touchstone. He calls the decision “an affirmation of justice itself.” Brown was decided in 1954, and it governs only segregation in public schools. This is because the Fourteenth Amendment’s guarantee of “the equal protection of the laws,” the right under which Brown was decided, is a right that can be exercised only against states and their agencies. But Breyer understands Brown in a broader sense. He believes that the reasoning in Brown leads to the condemnation of any and all discrimination that is within the reach of government to eliminate.

Extending the spirit of Brown is what the 1964 Civil Rights Act was designed to do. The act was signed into law in July, just as Breyer was beginning his clerkship, and it did something that Congress had tried once before, in 1875: make it unlawful for public accommodations like hotels, theatres, and restaurants to discriminate on the basis of race. In 1883, in a blockbuster decision, the Supreme Court had thrown out that earlier act as unconstitutional. It ruled that the government cannot tell private parties whom they must serve.

Title II of the Civil Rights Act once again prohibited discrimination in public accommodations on the basis of race, color, religion, or national origin. But how are privately owned businesses like restaurants within the reach of the state? In October, 1964, three months after the act was signed into law, that question came before the Court in two challenges to the constitutionality of Title II: Heart of Atlanta Motel v. U.S., concerning a motel in Georgia that refused to serve Black travellers, and Katzenbach v. McClung, concerning a restaurant in Birmingham, Ollie’s Barbecue, that refused to seat Black customers. (They could use a takeout window.)

The Court ruled that Congress gets its power to ban discrimination in public accommodations from the commerce clause in Article I of the Constitution. (“Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”) This holding required the Court to find that the Heart of Atlanta Motel and Ollie’s Barbecue were, in fact, part of interstate commerce. And the Court so found.

Since the motel was patronized by people travelling from one state to another, and since the ingredients for some of the food served at Ollie’s came from outside Alabama, the Court held that the motel and the restaurant were part of commerce “among the several states” and therefore within the power of Congress to regulate. The Court declared the 1883 ruling “inapposite and without precedential value,” and the decision in both cases was unanimous. Breyer thinks that they were the most important rulings of his clerkship.

There was another case with far-reaching effects that was decided during Breyer’s clerkship: Griswold v. Connecticut. The plaintiffs, Estelle Griswold and C. Lee Buxton, opened a Planned Parenthood clinic in New Haven and were arrested for counselling married couples about birth-control devices, which were illegal under the state’s anti-contraception law. Griswold and Buxton argued that, since the law was unconstitutional, they could not be prosecuted for advising women to break it. In a 7–2 decision, the Court agreed. What constitutional provision did the Connecticut law violate? The right to privacy.

Justice William O. Douglas wrote the opinion of the Court, and it is a classic of judicial inventiveness. Nowhere does the Constitution mention a right to privacy, but Douglas proposed that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” By this jurisprudential alchemy, the First, Third, Fourth, Fifth, and Ninth Amendments could be interpreted as defining a “zone of privacy” whose penumbra would extend to the marital bedroom.

Douglas concluded his opinion with an encomium to marriage. He got quite worked up about it. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred,” he wrote. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Douglas was sixty-six. A year after Griswold, he divorced his twenty-six-year-old third wife, Joan Martin, to marry Cathleen Heffernan, who was twenty-two.

Griswold became a key precedent in two landmark cases: Roe v. Wade, decided in 1973, and Obergefell v. Hodges, the same-sex-marriage case, decided in 2015. “The right of privacy,” Harry Blackmun wrote for the Court in Roe, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In Obergefell, Anthony Kennedy, also writing for the Court, quoted Douglas’s reflections on marriage in their entirety and added some emanations of his own. In addition to a privacy right, he declared, constitutional liberties extend “to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” (In a dissent, Scalia said that he would “hide my head in a bag” before putting his name to some of Kennedy’s prose.)

The shape of Breyer’s Supreme Court career therefore has an emblematic significance, because it was bookended by two decisions that undid much of what the Warren Court achieved in Heart of Atlanta and Griswold. Breyer’s first major dissent came in 1995, in U.S. v. Lopez, a commerce-clause case; his last was in Dobbs v. Jackson Women’s Organization, the decision that overturned Roe v. Wade .

Lopez turned on the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm in a school zone. In a 5–4 decision, the Court rejected the government’s argument that the act was a legitimate exercise of Congress’s power under the commerce clause. It was the first time since 1936 that the Court had struck down a federal law for exceeding the commerce-clause power.

Much of the New Deal was made possible by the commerce clause. In his dissent, Breyer noted that more than a hundred federal laws include the phrase “affecting commerce.” How many was the Court bent on invalidating? Some, anyway. Five years later, in U.S. v. Morrison, the Court threw out provisions of the Violence Against Women Act on the ground of commerce-clause overreach.

Breyer’s dissent in Dobbs, in 2022, was joined by Elena Kagan and Sonia Sotomayor . The privacy right in Roe “does not stand alone,” they wrote. “The Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. . . . They are all part of the same constitutional fabric.” They wondered, again, how much the Court was prepared to unravel. In his concurrence, Thomas suggested that the Court might want to reconsider Griswold and Obergefell.

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What happened? Breyer has an explanation, and he lays it out in the new book. He thinks it’s all a matter of interpretation.

As Breyer points out, a majority of the Court now subscribes to the interpretive methods known as textualism and originalism. Textualism and originalism tend to be run together as types of what used to be called “strict construction” (a term that seems to have fallen out of use). But there is a difference. Textualism is primarily a way of interpreting statutes, and originalism is a way of interpreting the Constitution.

Textualists ask what the words of a statute literally mean. Information like legislative history or social-science data is largely irrelevant. Textualists don’t ask, “What would Congress have us do?” They just say, “What is the rule here?” and try to follow it.

Originalists, on the other hand, ask what the Framers would have them do. Originalists can consult the records of the Constitutional Convention (which are hardly comprehensive) and documents like the Federalist Papers (which is a collection of op-eds). But they claim to stick to the “original public understanding” of constitutional language—that is, what the words meant to the average voter in the eighteenth century. They do not invent rights that the Framers would not have recognized, as originalists think Douglas did in Griswold.

More recently, originalists have looked to something called “history and tradition,” highly malleable terms—whose history? which tradition?—by which they tend to mean things as they were prior to circa 1964. Writing for the Court in Dobbs, Samuel Alito explained that the decision turned on “whether the right at issue in this case is rooted in our Nation’s history and tradition.” The constitutional right to abortion was then fifty years old. For women likely to rely on it, the right had existed for their entire lifetimes. But what mattered to the originalists was whether women could rely on it in the nineteenth century.

The use of race as a plus factor in college and university admissions is even older. The practice dates from the late nineteen-sixties, and has been ruled constitutional by the Supreme Court three times: in 1978, in 2003, and in 2016. But the majority had little trouble wiping it out last term, in Students for Fair Admissions v. Harvard . It is a bit brazen to be shouldering aside precedents under the banner of “tradition.”

Breyer sums up textualism and originalism as attempts to make judicial reasoning a science and to make law a list of rules. In our system of government, the Constitution is the big trump card. But it doesn’t come with a user manual. The document is basically a list of clauses—the commerce clause (sixteen words), the equal-protection clause (fourteen words), and so on. And the Constitution gives the reason for a clause only twice: in the patent-and-copyright clause in Article I and in the right-to-bear-arms clause in the Second Amendment. (We could add the preamble, the “We the People” clause, which gives the rationale for having a written constitution in the first place, a novel idea in 1787.)

Some constitutional clauses, like the requirement that the President be native-born, are rules, but many, like the equal-protection clause (the only reference to equality in the entire document), are principles. They do not mark out bright lines separating the constitutionally permitted from the constitutionally forbidden.

Courts, however, are obliged to draw those lines. Judges cannot conclude that the law is a gray area. Textualists and originalists believe that their approach draws the line at the right place. Breyer thinks that the idea that there is a single right place, good for all time, is a delusion, and that his approach, which he calls “pragmatism,” is the one best suited to the design of the American legal system. Pragmatism makes the system “workable” (a word Breyer uses many times) because it does not box us into rigid doctrines and anachronistic meanings.

Pragmatist judges therefore look to the law’s purposes, consequences, and values. They ask, “Why did the lawmakers write this? What are the real-world consequences for the way the Court interprets it? And what are the values that subtend the system of government that courts are a part of?” These are questions that literal readings can’t answer.

An originalist like Scalia, for example, thinks that the “cruel and unusual punishment” clause in the Eighth Amendment makes unconstitutional only punishments that would have been considered cruel and unusual in 1791, the year the amendment was ratified. In 1791, people were sentenced to death for theft. If we said that seems cruel and unusual today, Scalia would say, “Fine. Pass a law against it. But the Constitution does not forbid it.” When he was asked what punishment the Framers would have considered cruel and unusual, Scalia said, “Thumbscrews.”

To this, a pragmatist judge would say, “Then what is the point of having a constitution?” The words “cruel and unusual” were chosen by the Framers (in this case, James Madison, who drafted the Bill of Rights) because their meanings are not fixed. And that goes to the purpose of the clause. The Constitution does not prohibit cruel and unusual punishment because cruelty is bad and we’re against it. It prohibits punishment that most people would find excessive in order to preserve the public’s faith in the criminal-justice system. If we started executing people for stealing a loaf of bread today, the system would lose its legitimacy. Surely an originalist would agree that the Framers were big on legitimacy.

The same is true of many other clauses—for example, the free-speech clause in the First Amendment. Free speech is protected not because it’s a God-given right. It’s protected because, in a democracy, if you do not allow the losers to have their say, you cannot expect them to submit to the will of the winners. Free speech legitimizes majoritarian rule.

Breyer’s book is organized as a series of analyses of some twenty Supreme Court cases, most of which Breyer took part in during his time on the Court. Some are major cases, like District of Columbia v. Heller, in which the originalists found a right to possess a gun for self-defense in the Second Amendment, which says nothing about self-defense. (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the eighteenth century are protected by the Second Amendment,” Scalia wrote in the Court’s opinion. Hmm. What happened to the Thumbscrews Doctrine?)

Other cases are perhaps less than major, like Return Mail, Inc. v. United States Postal Service, which answered the question of whether the federal government is a “person” capable of petitioning the Patent Trial and Appeal Board under the Leahy-Smith America Invents Act. (It is not.) Breyer explains how originalists and textualists decided each case and how he, as a pragmatist, decided them. His book is accessible, rather repetitive, and neither theoretical nor technical. It is addressed to non-lawyers.

It also seems weirdly naïve. Or maybe purposefully naïve. In most of the cases Breyer discusses, where there was disagreement on the Court it resulted not from differences in interpretive methods but from differences in politics. In almost every case, the originalists and textualists came down on the conservative side, restricting the powers of the federal government and expanding the powers of the states, and the pragmatists and “living constitutionalists” (another term that’s now largely avoided) came down on the liberal side.

What is naïve is to believe that the conservative Justices—which means, on the current Court, the six Justices appointed by Republican Presidents, though they are not always on the same page—would decide cases differently if they switched to another method of interpretation. Judicial reasoning doesn’t work that way. Judges pretty much know where they want to come out, and then they figure out a juridically respectable way of getting there.

Why would Breyer want to ignore, or seriously understate, the part that political ideology plays in Supreme Court decisions? The answer lies in an earlier book, “ The Authority of the Court and the Peril of Politics ,” based on a lecture he delivered at Harvard in 2021. It’s all about legitimacy.

Legitimacy is why the Warren Court was on a mission in 1964. The Supreme Court’s reputation—you could say its mystique—is all that it has. It cannot tax or spend. Only Congress can do those things, and only the President can send in the Army. When Southern school districts ignored Brown and refused to integrate, the Court was in danger of being exposed as a paper tiger. It was crucial, therefore, that everyone believe that the Justices were not making law, only finding it. The Constitution made them do it. That was the Court’s claim to legitimacy.

Breyer thinks that the Court still operates this way. All Justices, he says in “The Authority of the Court,” “studiously try to avoid deciding a case on the basis of ideology rather than law.” The reason that “different political groups so strongly support some persons for appointment to the Court and so strongly oppose others” is that people “confuse perceived personal ideology (inferred from party affiliation or that of the nominating executive) and professed judicial philosophy.”

But Presidents and Senate majorities certainly think they are appointing Justices who share their political beliefs, even when they profess to be simply looking for the most qualified jurist. Sometimes Presidents are wrong. Earl Warren, appointed by Dwight D. Eisenhower, no enthusiast of race-mixing, is a famous example. But that is not because Warren was apolitical. Warren was a Republican politician. He had been elected governor of California three times and had run for Vice-President on the ticket with Thomas E. Dewey, in 1948. For Warren, the political constituency that mattered when he became Chief Justice was not the President or Congress. It was the public.

He could see that, in the postwar era, public opinion was likely to favor expanded liberties—the United States was presenting itself, after all, as the leader of the free world—and although his court may sometimes have got a few paces ahead of public opinion, it was largely in step with the times. It was a liberal era. We are not living in a liberal era anymore, and the Court reflects this.

Politics is the art of governance. The Supreme Court is a branch of government, and is therefore a political body. Its decisions affect public life. If by “political” we mean “partisan,” we are still talking about governance, because partisanship is loyalty to a political ideology, normally instantiated in a political party. Politics, therefore, cannot not be partisan. Partisanship is how politics works. Even when politicians say, “This is no time for politics,” they are saying it for partisan reasons. They are saying it because it is good for their side to say it.

What makes the Court different from other political actors is stare decisis, the tradition of respecting its earlier decisions, something Congress does not have to worry about. There is no rule against overturning a precedent, though. So why has the Court been traditionally reluctant to do so? Why does Thomas’s suggestion that it might be time to overrule Griswold and Obergefell seem so radical? It’s because the Court’s legitimacy is intimately tied to the perception that, in making its rulings, it looks only to what the Constitution says and what the Court has previously decided. When the Court overturns a case, it has to make it appear as though the decision was wrong as a matter of law.

This is why Breyer insists that it’s all a matter of legal forensics, of what interpretive lenses the Justices use. He wants to preserve the authority of the Court. He wants to prevent the Justices from being seen as the puppets of politicians.

His toughest moment on the Court, for this reason, must have been Parents Involved in Community Schools v. Seattle School District, decided in 2007. In that case, the Court struck down a Seattle policy of using race as a factor in assigning students to high schools with the aim of attaining rough racial balance.

It was the kind of policy that the Court had approved a number of times since Brown. Now, in an opinion by John Roberts, the Court declared that it had had enough. Roberts ended with a memorable line, no doubt saved up for the right occasion: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

After Roberts announced the Court’s opinion, on the last day of the term, Breyer delivered a speech from the bench. “Bristling with barely concealed anger,” according to an account by the legal scholar Lani Guinier, he accused the Court’s Republican appointees of voting their policy preferences. “It is not often in the law that so few have so quickly changed so much,” he said.

In 2019, Breyer’s speech from the bench was published as a pamphlet by Brookings. The title he gave it was “Breaking the Promise of Brown.” ♦

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Under Half of Illegal Gun Cases Tracked by A.T.F. Were Involved in Black Market Sales

The report, part of an effort by the Biden administration to make public previously undisclosed data, offered a portrait of the country’s growing illegal firearms market.

By Glenn Thrush

Reporting from Washington

Four in 10 illegal gun cases tracked by the Bureau of Alcohol, Tobacco, Firearms and Explosives were involved in black market sales, including from shadow dealers who used a legal loophole to evade background checks, according to an analysis of firearms trafficking released on Thursday.

About another 40 percent of gun investigations initiated by federal officials centered on illegal “straw” purchases made by proxies hired by criminals, or other people prohibited from legally buying weapons for themselves because of drug use or mental illnesses.

The report , part of a broader effort by the Biden administration to make public previously undisclosed firearms data, offered an expansive portrait of the country’s growing illegal firearms market — including the origin of weapons and trafficking patterns.

The study is the third of four scheduled to be released. It covers about 10,000 A.T.F. investigations from 2017 to 2021 — a period that included the biggest surge in gun violence in decades. But it is likely to undercount more recent developments, such as the rapid proliferation of deadly homemade weapons known as “ghost guns,” federal officials said.

The White House is likely to use the new data to muster support for regulations closing a loophole that has allowed kitchen-table dealers, gun-show vendors and online sellers to avoid background checks required of 80,000 federally licensed dealers by claiming they are not primarily “engaged in the business” of firearms sales.

The proposed rule change is part of President Biden’s piecemeal push to enact a key policy goal — universal background checks — which congressional Republicans have repeatedly stymied. Some gun rights advocates have vowed to fight the measure, saying the vast majority of sellers are law-abiding citizens or collectors.

“Individuals illegally engaged in the business of unlicensed firearms dealing are contributing more and more to the flow of firearms into the black market, where we know that felons, gang members and other violent offenders often get their guns,” said Steven M. Dettelbach, the A.T.F.’s director. “Americans need this data to understand this threat.”

The report also documented the expanding use of online platforms, social media and peer-to-peer platforms in illegal sales. The agency found that those collectively accounted for about 7 percent of illegal transactions.

Gun shows, flea markets and fairs made up a relatively small percentage of illegal sales, about 3 percent.

Federally licensed dealers directly sold a minuscule percentage of guns, less than 2 percent, later used in crimes. Nonetheless, many of the guns used to commit crimes originated with legal sales before being resold illegally, and around 18 percent of the illegal firearms tracked by the bureau had been stolen from federally licensed dealers.

The problem was particularly bad in Houston, New Orleans and Kansas City, which together accounted for a quarter of the cases brought in connection with guns stolen from dealers.

The report, taken in its entirety, confirmed long-held assumptions about trafficking patterns.

In most areas, weapons are transported within a single state, typically concealed in a car or truck. The exception is the Northeast, a region with tight gun laws and open transportation corridors that allow the easy inflow of guns from other parts of the country, especially the Southeast.

A majority of people investigated for owning, selling or using an illegal gun are white, more than 80 percent are men and the overwhelming majority — 95 percent — are U.S. citizens, according to the report.

Earlier tranches of the report, released over the past two years, have helped fill in some of the statistical gaps in gun trafficking data, which had not been publicly released for more than 20 years.

The first volume painted a vivid portrait of a nation arming itself to the teeth.

The annual number of firearms manufactured has nearly tripled since 2000 and spiked sharply in the past three years, according to a federal tally of gun commerce.

The data documented a drastic shift in consumer demand among gun owners that has had profound implications: Starting in 2009, Glock-type semiautomatic handguns, purchased for personal protection, began to outsell rifles, which have been typically used in hunting.

Another statistic in the 306-page document elicited concern among law enforcement officials. The police recovered 19,344 privately manufactured firearms, untraceable homemade weapons known as “ghost guns,” in 2021, a tenfold increase since 2016.

Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, The New York Daily News, The Birmingham Post-Herald and City Limits. More about Glenn Thrush

Gun Violence in America

A Grieving Mother’s Hope: Katy Dieckhaus, whose daughter was killed in the 2023 Covent School shooting in Nashville, is pleading for compromise with those who see gun rights as sacred .

A Historic Case: On Feb. 6, an American jury convicted a parent for a mass shooting carried out by their child for the first time. Lisa Miller, a reporter who has been following the case since its beginning, explains what the verdict really means .

Echoing Through School Grounds: In a Rhode Island city, gunshots from AR-15-style weapons have become the daily soundtrack for a school within 500 yards of a police shooting range. Parents are terrified, and children have grown accustomed to the threat of violence .

The Emotional Toll: We asked Times readers how the threat of gun violence has affected the way they lead their lives. Here’s what they told us .

Gun Control: U.S. gun laws are at the center of heated exchanges between those in favor and against tougher regulations. Here’s what to know about that debate .

Is Florida’s red flag law working? Gun deaths are up, but mass shootings are down.

• Rafael Olmeda South Florida Sun Sentinel (TNS)

FORT LAUDERDALE — Florida’s red flag law was a tangible response to an overwhelming tragedy — the murders of 17 people, 14 of them students, at Marjory Stoneman Douglas High School in Parkland.

The law empowered the state to seize weapons from anyone who is reported to be at risk of using them to commit a crime. The report could come to law enforcement from a family member or friend, and state records show more than 12,000 people have temporarily lost access to their firearms in the five years since the law was passed.

Under the law, a judge can grant a temporary risk protection order enabling law enforcement to keep a gun owner from having access to their weapons. The guns can be placed in the care of a family member or trusted friend, as long as the person named in the order can’t get their hands on it.

After 30 days, police can decide whether to seek a final order, which blocks the person’s access to guns for at least a year, unless it’s renewed.

Karl Chludinsky had his guns returned to him in April 2023 after losing access to them for more than a year under the law. But the risk he posed wasn’t over. On March 21,  he died in a shootout with Fort Lauderdale police  at the Holiday Inn Express on Southeast 17h Street. Chludinsky shot one officer, who survived.

Advocates say the preemptive nature of the law is critical.

“The law’s been used 12,000 times,” said Fred Guttenberg, who became one of the state’s leading gun control advocates after his 14-year-old daughter, Jaime, was murdered at Stoneman Douglas. “We know from law enforcement reports that there are many potential threats that were stopped before they could happen.”

But when it comes to whether the law is having a lasting impact on crime in Florida, the answer is elusive, partly because it’s not the only factor to consider.

According to the Centers for Disease Control and Prevention, gun deaths in Florida rose from 12.9 per 100,000 in 2018 to 14.1 in 2023.

Overall, incidents described as mass shootings have declined in Florida, according to the Gun Violence Archive, a private nonprofit that analyzes news reports and law enforcement statistics. The organization defines mass shootings as incidents in which a minimum of four people are shot, whether or not they die from their injuries.

“That is one way to look at it,” Guttenberg said. “Another way is to recognize that there are simply far more guns in Florida than there were five years ago.”

Guttenberg is far from the law’s only champion.

“There’s no question that it has prevented harm. No doubt in my mind,” said Pinellas County Sheriff Bob Gualtieri, who was chairperson of the statewide Marjory Stoneman Douglas Safety Commission, which advocated for the law and other reforms since the shooting.

After touring the Stoneman Douglas shooting site last month, Vice President Kamala Harris  announced a push to expand red flag laws  across the nation through a new National Extreme Risk Protection Order Resource Center.

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Gun rights advocates were initially cautious about criticizing the law immediately after it was implemented, but they’ve been more open in their opposition as the years have passed.

Writing in The Federalist, a conservative online magazine, Crime Prevention Research Center president John Lott said the laws don’t give wrongly accused gun owners enough power to protect their interests.

“Congress never authorized the U.S. Department of Justice to create this resource center,” Lott wrote with U.S. Rep. Thomas Massie, R-Kentucky. “A judge acts solely on the basis of a written complaint. He never talks to the person who made the complaint or the person against whom it was made.”

To illustrate their point, Lott and Massie cited use of the law last year against Andrew Pollack, another father of a slain Stoneman Douglas student, Meadow, 18. Pollack, who now lives in Oregon, had his guns returned after a judge determined he never made any threat that showed he was at risk of using them.

Pollack criticized the ability of police to seize weapons before the alleged threat is properly assessed. “Is the guy threatening to kill people? Arrest him,” Pollack said. “But there has to be due process before the guns are taken away, not after. You can’t just go take their guns away.”

Fort Lauderdale lawyer David Brill, who represents Pollack locally, said the fact that the law can be abused should not detract from its value. “There’s always going to be someone who’s going to abuse the intent and spirit of a given provision for his or her own benefit,” he said. “There is a lot of benefit that could accrue from this law. We just need to be careful that it’s not abused.”

©2024 South Florida Sun Sentinel. Visit at  sun-sentinel.com . Distributed by Tribune Content Agency LLC.

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First refuelling for Russia’s Akademik Lomonosov floating NPP

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The FNPP includes two KLT-40S reactor units. In such reactors, nuclear fuel is not replaced in the same way as in standard NPPs – partial replacement of fuel once every 12-18 months. Instead, once every few years the entire reactor core is replaced with and a full load of fresh fuel.

The KLT-40S reactor cores have a number of advantages compared with standard NPPs. For the first time, a cassette core was used, which made it possible to increase the fuel cycle to 3-3.5 years before refuelling, and also reduce by one and a half times the fuel component in the cost of the electricity produced. The operating experience of the FNPP provided the basis for the design of the new series of nuclear icebreaker reactors (series 22220). Currently, three such icebreakers have been launched.

The Akademik Lomonosov was connected to the power grid in December 2019, and put into commercial operation in May 2020.

Electricity generation from the FNPP at the end of 2023 amounted to 194 GWh. The population of Pevek is just over 4,000 people. However, the plant can potentially provide electricity to a city with a population of up to 100,000. The FNPP solved two problems. Firstly, it replaced the retiring capacities of the Bilibino Nuclear Power Plant, which has been operating since 1974, as well as the Chaunskaya Thermal Power Plant, which is more than 70 years old. It also supplies power to the main mining enterprises located in western Chukotka. In September, a 490 km 110 kilovolt power transmission line was put into operation connecting Pevek and Bilibino.

Image courtesy of TVEL

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Swastika-wearing gunman kills 15, wounds 24 in school shooting in Russia

A swastika-clad gunman opened fire at a school in central Russia on Monday, killing at least 15 people, 11 of them children, before he turned the gun on himself, authorities said.

Another 24 people, 22 children and two adults, were wounded in the attack on School No. 88 in Izhevsk, the capital of Udmurtia, about 600 miles east of Moscow, Russia’s Investigative Committee said.

The gunman was identified as Artem Kazantsev, 34. Udmurtia Gov. Alexander Brechalov said he was registered as a patient at a psychiatric facility.

The Investigative Committee released video purporting to show the gunman’s body in a classroom. He appeared to be wearing nearly all black, including a balaclava covering his face and a T-shirt with a red swastika drawn on it. 

The video also showed the word "hate" written in Russian on all the gun clips.

“I express my deep, sincere condolences to the relatives and friends of those who died as a result of the cynical and ruthless attack on the school in Izhevsk,” Investigative Committee Chairman Alexander Bastrykin said in a statement.

“The monstrous crime claimed the lives of children, including very young ones, and adults. This is a terrible tragedy, a heavy loss for all of us.” 

The gunman was armed with two pistols and an additional large supply of ammunition, the Russian state news agency Tass reported .

Monday’s attack was the latest in several recent school shootings in Russia.

Seven children and two adults were gunned down in May last year in an attack in Kazan.

And in April, a man killed two children and a teacher at a kindergarten in Veshkayma, a town in the central Ulyanovsk region, before he died by suicide.