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What Is a 'Well Regulated Militia,' Anyway?The Founders liked militias, but they also liked an armed citizenry. To them, the two ideas were inseparable. Brian Doherty | From the December 2019 issue
Gun control advocates love to hate District of Columbia v. Heller, the 2008 case in which the Supreme Courtrecognized that the Second Amendment protects an individual right to arms. They may be protesting too much. Federal courts in the decade since have found many restrictions on the right to own and use weapons perfectly congruent with that decision. Heller merely says the government can't enforce laws that prevent (most) Americans from possessing commonly used weapons in their homes for self-defense.
Courts have found that Heller does not preclude laws that prohibit anyone younger than 21 from buying guns in retail stores; laws that bar people who committed a single nonviolent felony from ever owning a gun; laws that severely restrict the ability to carry a gun outside the home; laws that ban commonly owned magazines of a certain capacity; or laws that require handguns to incorporate untested, expensive, and unreliable "microstamping" technology. The Supreme Court so far has avoided taking up any of those questions.
Still, many activists and legal scholars, along with at least two of the Supreme Court justices who dissented in Heller, believe the Second Amendment, properly construed, never guaranteed an individual right at all, or at least not one related to personal self-defense in the home.
Their argument is based on that amendment's reference to "a well regulated militia," which they define as a military force organized and supervised by the government. Outside a well-regulated militia, they suggest, the Second Amendment has no practical effect a lawmaker need respect. Some gun control advocates also argue that the descriptor well regulated implies that the government has wide latitude to decide who may have which weapons under what circumstances. But as the Supreme Court correctly concluded in Heller, these arguments are inconsistent with the text and context of the Second Amendment.
The structure of the Second Amendment has invited decades of dueling interpretations. "A well regulated Militia, being necessary to the security of a free State," it says, "the right of the people to keep and bear Arms, shall not be infringed."
The part of the amendment that could be its own stand-alone sentence—the right of the people to keep and bear Arms, shall not be infringed—is known as the "operative clause." The well regulated Militia part—the prefatory clause—is understood by enthusiastic gun regulators as defining the only reason for preserving the right to keep and bear arms (as opposed to one of the reasons). Anyone who is not a member of a well-regulated militia would have no such right.
The late Justice Antonin Scalia, who wrote the majority opinion in Heller, thought it made no sense to read the prefatory clause that way, because that would essentially nullify the direct and clear meaning of the operative clause. While the prefatory clause could give insight into some of the specifics of how to apply the operative clause, he argued, it could not make the right to arms contingent on militia service.
Scalia pointed out that the amendment refers to "the right of the people." When that language is used elsewhere in the Bill of Rights—in the First and Fourth Amendments, for example—it plainly means a right that belongs to every individual, as opposed to a collective with special properties, such as a militia. A prefatory clause mentioning a purpose, Scalia argued, is not sufficient to overwhelm the commonsense and contextual meaning of a right guaranteed to everyone. Furthermore, he said, contemporaneous usage makes it clear that the phrase bear arms cannot be restricted to a military context, as Justice John Paul Stevens suggested it should be in his dissent.
Eugene Volokh, a professor at the University of California, Los Angeles School of Law, explored the relationship between the prefatory and operative clauses of the Second Amendment in a 1998 New York University Law Review article that helped lay the groundwork for Heller. While such prefatory phrases were unusual in the U.S. Constitution, Volokh noted, they were common enough in state constitutions that their function can be elucidated by considering how those documents were understood.
Volokh cited dozens of state constitutional provisions from the founding era that used a similar structure: a prefatory clause stating a purpose, followed by a statement of a right. These provisions covered, among other things, freedom of speech, freedom from unjustified searches and seizures, and the right to be tried for a crime in the county where the crime was committed. In such cases, Volokh said, no one could reasonably argue that "only when a judge has concluded that exercising the right furthers the prefatory purpose does the right exist."
The idea that the Second Amendment applies only to people actively serving in a government-organized militia is based partly on a misreading of the 1939 case U.S. v. Miller. In Miller, the Supreme Court upheld the prosecution of two men who violated the National Firearms Act by transporting an unregistered sawed-off shotgun across state lines. "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length'…has some reasonable relationship to the preservation or efficiency of a well regulated militia," Justice James McReynolds wrote in the unanimous opinion, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
McReynolds was talking about the kinds of weapons covered, not the kinds of people. He repeatedly noted that the "militia" mentioned in the Second Amendment "comprised all males physically capable of acting in concert for the common defense." In other words, the militia was not limited to a government-supervised fighting force; it consisted of all able-bodied men. The decision is an example of how both clauses of the Second Amendment can be meaningful, with McReynolds using the prefatory clause to help settle a question raised by the operative clause without reducing it to a nullity. What arms do the people have the right to keep and bear? The type used in an organized militia.
When the Second Amendment was written, the idea that Americans had an individual right (and in some cases an obligation) to possess arms for defense of both themselves and the state was widely understood. It had roots in the rights won by the Glorious Revolution of 1688—rights that the American Revolution was dedicated to preserving.
In 1788, as Massachusetts was poised to ratify the U.S. Constitution, Samuel Adams advocated an amendment making it clear that "the Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms." Commenting on the proposed Bill of Rights the following year, Tench Coxe, a member of the Continental Congress, described the Second Amendment this way: "As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
After the Bill of Rights was ratified, St. George Tucker, a professor of law at the College of William & Mary, described the Second Amendment as "the true palladium of liberty." He noted that "the right to self-defence is the first law of nature" and that "in most governments it has been the study of rulers to confine the right within the narrowest limits possible."
This tradition was reflected in state constitutions that explicitly guaranteed an individual right to armed self-defense. Pennsylvania's, enacted in 1790, said "the right of the citizens to bear arms in defence of themselves and the State shall not be questioned," for example, while Vermont's, enacted in 1777, said "the people have a right to bear arms for the defence of themselves and the State."
Article I, Section 8 of the Constitution also helps clarify what the Second Amendment was all about. Among other things, that section gives Congress the power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions" and "to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
People who deny that the Second Amendment protects an individual right to armed self-defense often argue that it was actually meant to protect state control of militias. But Article I, Section 8 shows that the states had already lost that battle.
If you believe the Second Amendment is just about state control of militias, it's an absurd nullity: It lays out a right and a purpose contradicted by the body of the Constitution, which gives the federal government near-total authority over the organized militia. As Scalia put it in Heller, under that interpretation, which the Court was rejecting, "the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them," making the right meaningless.
The only sense in which the Second Amendment's language could logically relate to those clauses is by saying that, notwithstanding the federal government's authority over the militias, the one thing it may not do is infringe on the people's right to keep and bear arms. The Senate, in ratifying the Constitution, considered and rejected a proposal that would have added "for the common defense" as a restriction on that right.
The militia, in the classic sense of the mass body of physically able adult citizens, still exists, though state attempts to "regulate" it are actuated through the National Guard nowadays. Is the larger, unorganized militia "well regulated"? Probably not if understood the way the Framers would have: as a wide body of the American people prepared to take up arms in defense of themselves and the state.
But whether we currently have a well-regulated militia doesn't control whether or not Americans have a right to keep and bear arms. The ideological background of the Second Amendment, the plain meaning of its operative clause, parallel phrasing elsewhere in the Constitution, and the militia clauses of Section I make it clear that they do. The Second Amendment, as Scalia rightly recognized, guarantees an individual right to the people, no matter how the federal government chooses to regulate the organized militia.
Suppose you are a professional academic who wants to publish a journal article in order to improve your chance of getting an offer, getting tenure, getting a raise. One way to do so is to produce and write up research that provides support for a novel theory. One problem is that, if the theory is true, it is quite likely that someone else in your field, over the past century or so, has already discovered it and published it, making your result not novel, hence likely to be rejected by the journal you submit it to.
If, on the other hand, your theory is false, the odds are much better that nobody else will have come up with it, found evidence to support it, and published. So if you can produce what looks like good evidence for a false theory, the odds that it will be novel, hence publishable, hence will contribute to your career, is much higher than for a true theory.
How do you produce evidence good enough to be publishable for a result that is not true?
One solution is a specification search, aka p-hacking. Your theory is that eating onions reduces the risk of Alzheimers disease. To test it, you find a sample of old people who have been tested for symptoms of cognitive decline and survey them on their dietary habits. As a first crude test, you run a regression with degree of cognitive decline as the dependent variable, estimated previous onion consumption as the independent variable.
Unfortunately, that doesn't work—there is no significant correlation between the two. You rerun the regression, this time doing it separately for men and women. Then separately by race. Then by race and gender. Then limited to people over 80. Then to people over 90. Then making your independent variable not estimated onion consumption but whether they report eating onions frequently, occasionally, or not at all. Then do that version for all your racial and gender categories. Then ...
When you are done, you have run a hundred different regressions, testing different variants of the theory that onions are protective against Alzheimers. You are gratified to discover that three of them are significant at the .05 level, with the right sign. You pick the best one and publish it: "Cognitive Effect of Self-Reported Onion Consumption on Elderly Afro-American Women."
The fact that a regression result is significant at the .05 level means that, if your theory is not true, the chance that the evidence in favor of it will, by pure chance, be as good as what you found is only .05. It follows that, if your theory is false, a hundred separate experiments can be expected to produce about five that support it at the .05 level.
In this version of the story, the researcher is deliberately trying multiple experiments and only reporting the results that support his theory. The same effect could occur via multiple experiments by multiple researchers. If a hundred different researchers produce one experiment each, all for false theories, about five will show evidence for the theory at the .05 level.
In honor of the 30th anniversary of the fall of the Berlin Wall
Escape from East Berlin In August 1961, East Germany laid the first bricks of a wall that would divide Berlin for 30 years. Leslie Colitt, a student in West Berlin, suddenly faced a perilous challenge – how to smuggle his fiancee from east to west theguardian.com
Escapee Recalls Sweet Revenge Against East German Regime spiegel.de
Freakonomics Radio - How Can This Possibly Be True? Dec 15, 2017 Our latest Freakonomics Radio episode is called “How Can This Possibly Be True?” A famous economics essay features a pencil (yes, a pencil) arguing that “not a single person on the face of this earth knows how to make me.” Is the pencil just bragging? In any case, what can the pencil teach us about our global interdependence — and the proper role of government in the economy?
Nearly fifty years ago the State of Alaska bought a foreign built ferry on the come, betting they could get a waiver on the Jones Act. The Wickersham was an impressive vessel, but turned in to a boondoggle and was sold not long after.
Much easier passing bad laws than getting rid of them.