WHAT ARMS?

“Well, it looks as though the Supreme Court punted on the latest gun control case,” I said as I looked at an article relating the fact. 

“What are you talking about?” Socrates asked as he looked up from his newspaper. 

“Someone appealed Maryland’s ban on semi-automatic rifles to the Supreme Court, but they declined to hear the case,” I replied. [1] “I’m a little surprised. I thought the Supreme Court was moving in the direction of gun rights.” 

“It doesn’t mean that much if the Court declines to hear a case.” Socrates said. “In light of recent decisions, they’re going to have to take up the issue eventually. But this doesn’t mean that the Court means to uphold Maryland’s law.” 

“I hope not. It would be disappointing if they started to backtrack on their recent Second Amendment cases.” 

“I take it you’re big on the right of citizens to own firearms,” Socrates said with a challenging smile. 

“You’re damn right!” I exclaimed with a tone of righteous indignation. “We have a right under the Second Amendment to bear arms.” 

Socrates took on an amused expression, to which I responded, “Don’t tell me that you’re one of those people who think the Second Amendment only protects the National Guard.” 

“Of course not,” Socrates replied. “The National Guard was created out of the militia in 1903. [2] The Second Amendment was ratified in 1791. How could the Second Amendment have been intended to protect the existence of the National Guard?” 

“Well, a lot of people think that because the Second Amendment refers to the militia.” [3] 

“But ‘militia’ is a pretty universal term, isn’t it? Last I checked, the militia consists of all able bodied male citizens from 17 to 45. [4] Are you sure they don’t mean that the right to possess and carry firearms exists only in connection with militia service?” [5] 

“You’re right. I think that’s it. But what say you?” 

“Well let’s take a look at the Second Amendment,” said Socrates. “It says, ‘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.’” 

“You have a good memory.” 

“It’s not that long. But let’s consider the meaning of the terms. I note that the Amendment refers to the ‘right of the people.’ Does that mean only the segment of the people in the militia or the National Guard?” 

“Certainly not.” 

“The ‘people’ must be the citizens of the United States, do you agree?” 

“I do.” 

“Every citizen?” 

“Sure.” 

“But you don’t mean that three-year-olds have a right to bear arms, do you?” 

“No, that would be silly.” 

“And dangerous. So, would it be fair to assume a measure of common sense and say that every citizen has a right to bear arms unless they suffer from a disability, such as minority or insanity?” 

“I think so.” 

“And would it also be sensible to prohibit arms to those who have demonstrated an inability to refrain from violence? I mean those who have been convicted of some crime involving violence.” 

“That makes sense.” 

“Okay, now that we’ve established that the right to bear arms applies to everyone with the exceptions mentioned, now we need to decide what sort of arms the Amendment refers to.” 

“You’re not going to suggest that the Second Amendment only means that we only have a right to keep and bear black powder muskets, are you?” 

“No. But does the Second Amendment say that we have a right to keep and bear any sort of arms we desire? 

“Of course it does. Why wouldn’t it?” 

“So does it protect a right for anyone to possess a bazooka, a grenade launcher, or even a tank?” 

“No, I suppose it doesn’t. But what sort of arms is it referring to?” 

“Consider the wording of the Amendment. Does it refer to ‘a’ right to keep and bear arms, or ‘the’ right to keep and bear arms?” 

“’The’ right to keep and bear arms.” 

“Then what is ‘the’ right to keep and bear arms? Clearly the Amendment was referring to a right that existed prior to its adoption. Otherwise it would have said ‘a’ right to keep and bear arms.” 

“Interesting point. I never thought of that.” 

“So where can we find what right the Amendment is referring to?” 

“Beats me.” 

“Well, didn’t the Framers come out of a legal tradition, by which I mean the legal tradition of England?” 

“Yes, you’ve pointed out to me before how we inherited the common law from England.” 

“And the paramount authority on the common law at the time of our nation’s founding was Blackstone’s Commentaries, am I right?” [6] 

“If you say so.” 

“So, doesn’t it make sense that in order to understand what the Framers meant by the right to keep and bear arms we should consult Blackstone?” 

“It does. But what did Blackstone say about it?” 

“He said that having arms for one’s defense is a necessary auxiliary right to the right to personal security. He wrote that it was “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” [7] 

“That makes sense. You can’t call the police while someone’s holding you at gunpoint.” 

“He didn’t make it up. When he wrote that he was referring to the English Bill of Rights of 1689, which included the provision that “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” [8] 

To that I laughed out loud. “Catholics and Jews weren’t allowed to have guns, but Protestants were? So the Second Amendment protects the right of Protestants to keep and bear arms, and the rest of us just have to hope for the best?”

“Well, there’s a history behind that,” Socrates explained. “The previous king, James the Second, had purportedly disarmed Protestants while allowing Catholics to own and possess arms. So, in historical context, the provision could have simply meant that Protestants would be allowed to have arms going forward, without prohibiting arms to Catholics or Jews.” 

“We can hope,” I said, still laughing. “Catholics weren’t too popular in the English speaking world in those days.” 

“No, but when Blackstone referred to the right to have arm’s for one’s defense, he didn’t mention any religious qualifications. And if you study his Commentaries, you will find that he was not at all favorable to Catholicism. So, doesn’t it make sense that if Catholics and Jews were intended to be excluded from the right to have arms that he would have mentioned it?” 

“Maybe.” 

“Besides, the Founders were anxious to keep religion and government separate. So, does it make sense that they intended the Second Amendment to apply only to Protestants?” 

“No, I guess not.” 

“Anyway, the point I’m trying to make is that the Amendment, since it referred to ‘the’ right to keep and bear arms, must have been referencing the antecedent English law.” 

“That makes sense.” 

“And what was the scope of that antecedent law? Wasn’t it to have arms for self-defense?” 

“It sounds like it.” 

“Doesn’t that clarify what kind of arms are intended to be covered by the Second Amendment? One doesn’t need a tank or grenade launcher for self-defense.” 

“Okay, but then why does the Second Amendment mention the militia?” 

“That’s the prefatory clause of the Amendment. It doesn’t necessarily define the scope of the operative clause. It makes sense that they would have thought of the militia in connection with the personal ownership of firearms in those days. An infantryman’s musket and those possessed by civilians wouldn’t have been that different. Of course, nowadays, the weapons that are suitable for self-defense and those carried by the military can be quite different. For example, a select-fire assault rifle is overkill as a personal defense weapon. But it’s standard issue for the military.” 

“Okay, maybe a fully automatic machine gun isn’t necessary for civilians. But the Supreme Court just rejected a case dealing with the prohibition of semiautomatic rifles. How do you think they’ll eventually come down on that?” 

“Time will tell,” Socrates said. “But don’t you think it’s highly questionable that a semiautomatic rifle is a self-defense weapon? Their range is somewhat beyond what is necessary for those purposes.” 

“True, but they’re necessary for deer hunting.” 

“There’s no danger of deer shooting back. Is a semiautomatic rifle necessary for deer?” 

“You seem to think it would be okay if they restricted us to shotguns and handguns. But what about our ability to rise up against the government if it turned against us? Wasn’t the Second Amendment adopted for that purpose too?” 

“Jacob, does it make sense to you that a document creating a government would provide for its own overthrow?”

“I’ll say it again. The Second Amendment refers to the militia.”

To this, Socrates laughed. “The militia is an agent of the state. Would an agent of the state overthrow the state?” 

“No, but what about those independent militias we hear about?”

“They’re not militias. I don’t know what to call them, but they’re not militias, properly speaking. Besides, think. Even if we gave those guys automatic weapons, do you think they would stand any chance against the United States Military?” 

I had to concede that point. “No, I think it would be pitiful.” 

“Yes it would.” 

“Then how do we fight against our government if it becomes tyrannical?” 

“Civil disobedience,” Socrates said. “It’s the only way.”

 

—Jack Quirk

PLAYING BLIND

 “That’s hilarious!” I exclaimed in response to the article I was reading on my phone. 

“I hope you’re not laughing at someone’s misfortune again,” replied Socrates. “That really is your least attractive feature.” 

“And your least attractive feature is being concerned about how attractive my features are,” I responded. “And you should laugh too. I’m reading an article about a congressman who admitted in front of his constituents that he hadn’t read the entirety of a bill he voted for.” [1]  

To that Socrates did laugh. “That’ll be front and center for his opponent in the next election. But what bill was this?” 

“It was that One Big Beautiful Bill Act.” [2]  

Socrates shook his head. “What a name for legislation. We really aren’t serious anymore, are we? But give the guy a break. That bill is over a thousand pages long.” 

“Still, shouldn’t our members of Congress read the bills before they vote on them?” 

“That would make sense. But it doesn’t happen that way. Sometimes they don’t even understand what’s in the bills they vote on.” [3]  

It was my turn to shake my head. “What are you going to do?” 

“Perhaps the first thing to do would be to take steps to keep legislation from being a thousand pages. Do you see any way to make that happen?” 

“I sure don’t. I tried to read a federal statute before. You could lose your eyesight doing that.” 

“Do you think it would be sensible to pass a law that required members of Congress to read legislation before it is voted on?” [4]  

“How would you enforce that? We’re talking about politicians here. Wouldn’t they just lie about it, and say they read the legislation when they didn’t?” 

“Couldn’t you make them swear to it under oath? Lying to the public might be standing operating procedure. But perjury might be a step too far for some of them.” 

“Maybe. But some of them might take comfort in the fact that making a perjury charge stick in such cases would be highly difficult to prove.” 

“We could require that they be able to present evidence that they read the legislation. What would you say to the idea of making it mandatory that they write out the legislation by hand, with a pen, before they vote on it? They would be required to keep their handwritten copies in a folder, available for inspection. And they wouldn’t be allowed to vote on a bill until they presented their handwritten copy to the chair.” 

I had to laugh at that one. “That would certainly do away with thousand page bills.” 

“Especially since there could be a requirement that no member of Congress could introduce a bill until he or she had written the entirety of it by hand.” 

“They would just make a member of their staff write it out.” 

“To prevent that, we could make it mandatory that whenever someone gets elected to Congress for the first time he or she would provide the clerk with a handwriting exemplar.” 

I laughed again. “Yep. That would probably take care of it. Let’s write our member of Congress immediately!” 

“I’m pretty sure members of Congress would see our idea as an unacceptable imposition,” Socrates said with a sardonic grin.  

“Then what’s the point of even talking about this?”  

“Well, if the idea gains currency, the pressure on Congress might become irresistible.” 

“But if things become too inconvenient for them they might quit.” 

“And give up all that legal inside trading? Fat chance. But there’s another step we could take to shorten legislation. And this is one that falls more within the Overton window, since 43 states have already adopted it.” [5]  

“Which is?” 

“It’s called the single subject rule. Under the rule, no bill may embrace or contain more than a single subject.” 

“And how would a single subject be defined?” 

“Like many things, the idea suffers from the paucity of human language. But there would be obvious cases. For example, a law limiting imports of automobiles would embrace a different subject than a law against kidnapping. On the other hand, would a law limiting imports of automobiles cover the same subject as one limiting the import of auto parts cover the same subject? I think the best way to implement the rule would be to ask the question whether one could logically agree with one part of the legislation and disagree with another part. If that could be done without contradiction, the legislation would fail the single subject test.” 

“Okay, I see that. But wouldn’t that interfere with the wheeling and dealing that goes on in Congress? One member will agree to vote for a bill if it contains a provision he or she wishes to add, and not otherwise. It’s already hard enough to get Congress to act. Wouldn’t it make the problem worse if senators and representatives couldn’t add unrelated matter to their bills?” 

“They could engage in the same wheeling and dealing with separate pieces of legislation, assuming that would be a good thing.” 

“But wouldn’t this require a constitutional amendment?” 

“To be effective it would. But that’s okay, we’ve done it before.” 

“Well, it would certainly shorten legislation, and make it simpler,” I said. “And there would be less excuse for members of Congress to vote on laws they haven’t read.” 

“It would be better for the public too,” Socrates added. “James Madison himself pointed out that representative democracy is meaningless where the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood. [6] And we don’t want that. Do we?”

CITIZENSHIP CLAWS

“The Citizenship Clause was meant to apply to former slaves, not just anyone whose parents happened to be in the United States when they were born,” I heard a male voice yell on the other side of the book stack.

I was in the library, looking for a self-help home repair manual, when my ears were assaulted by this disturbance of the enforceable quietude of my location. I then heard a much quieter voice that I recognized, saying, “Settle down, Dean, we’re in the library.”

Giving way to curiosity, I peaked around the bookcase to see Socrates standing in front of a dark haired man whose face bore the expression of some agitation. I greeted Socrates, who turned around and returned the greeting. The man, whom Socrates had called “Dean,” didn’t take his eyes off of Socrates. He spoke again in the same disruptive volume. “This leftist crap is going to be the ruination of our country. We can’t have people sneaking across the border, dropping babies, and calling them citizens. It’s that simple.”

At that, a librarian appeared who said in what I interpreted as the most polite tone she could manage, “Excuse me, gentlemen, if you need to have this discussion, I would appreciate it if you could use one of the conference rooms.”

“Yes, of course,” Socrates replied. “I apologize for the disturbance.” With that, he began to walk toward the nearest empty conference room.

Dean didn’t budge at first, and I got the impression that he didn’t really want to have a discussion about his position, but simply wanted to state his opinion. I asked him if he was going to follow Socrates, and he replied, “I guess so, but I don’t really see what there is to discuss.”

He began walking in the direction of the conference room, and I followed. When we were half way to the destination he turned and asked, “Why are you following me?”

“I like to watch people argue with Socrates,” I replied.

Dean seemed annoyed, but he didn’t say anything. When we entered the conference room, I closed the door, and Dean said to Socrates, “Your friend wants to watch our discussion. I guess he doesn’t have anything important to do at the moment.”

Socrates laughed. “Jacob never has anything important to do.”

Dean apparently caught the humor of the remark, but only smiled faintly. He looked at me as though he wanted to say ‘I believe it.’

“So, what makes you so certain that the Citizenship Clause of the 14^th Amendment [1] was meant to apply only to former slaves?”

Dean scowled. “Isn’t it obvious? It was adopted right after the Civil War. The slaves had been permanently freed by the 13^th Amendment [2], and the purpose of the Citizenship Clause was to make it clear that they were now citizens.”   

“But isn’t it true that the source of the Citizenship Clause was actually English Common Law?”

“What do you mean?”

“Yes, Socrates,” I interjected, “what do you mean by ‘English Common Law’? I don’t understand the term.”

Dean laughed derisively. “Socrates, you’ve been hanging out with some stupid people these days.”

“There’s nothing stupid about admitting you don’t know something,” Socrates replied, “especially when you ask to be educated.” Then, turning his attention to me, he said, “The common law was the system of law they had in England, mostly based on court precedent. Every state except Louisiana has adopted it as their law, I guess you could say their law in default, except to the extent it has been changed by American or state law. It’s also the reason our courts rely on precedent, because that was characteristic of the common law system.”

”Thanks, Socrates,” I said. “And thanks for explaining that I’m not stupid.”

Socrates grinned. “I didn’t say that you’re not stupid. I simply said that you aren’t stupid because you asked a question.”

“After this conversation is over, we need to talk about you getting a job,” I retorted.

Socrates turned to Dean and asked, “Now what was your question?”

“I asked what you meant by saying that ‘that the source of the Citizenship Clause was actually English Common Law.’”

“I take it you don’t recall that in the case of United States v. Wong Kim Ark [3], the United States Supreme Court said that the Citizenship Clause, since it doesn’t define its pertinent terms, must be interpreted in light of the common law?”

“Okay, so what? That was an 1897 case.”

“Has it been overruled?”

“No.”

“So, are you saying that Supreme Court cases have some kind of expiration date?”

“No, but maybe today the Court would look at the same facts and reach a different conclusion.”

“Well, let’s see,” Socrates said. “Do you recall that the case involved a man of Chinese ancestry who had been born in San Francisco?”

“That’s right. And his parents were Chinese citizens.”

“And you also know that the Court ultimately ruled that the man was an American citizen because he was born in the United States.”

“True.”

“Now isn’t it true that the Court reached its conclusion based on English Common Law?”

“Right again.”

“And isn’t it also true that the same case pointed out that, according to English Common Law, that a fundamental principle of the common law with regard to nationality was birth within the allegiance of the king, that is, born in England or anyplace subject to the king’s jurisdiction?”

Dean laughed. “We don’t have kings anymore.”

“We didn’t have a king at the time of the Wong Kim Ark case either, but the Court apparently didn’t see that as a relevant consideration, and upheld the common law rule of birthright citizenship.”

“Aha! But the question is whether Wong Kim Ark was subject to the jurisdiction of the United States, and that is something the Court will have to consider in any future case.”

“You don’t recall that the Court did consider that, and said that Wong Kim Ark would not be subject to the jurisdiction of the United States only if he was a child of foreign ambassadors or a child born to foreigners during a hostile occupation?”

“Well, I think today the Court should rule that anyone born of illegal immigrants isn’t subject to the jurisdiction of the United States.”

“How would that work? If someone born of illegal immigrants commits a crime, don’t our courts have jurisdiction to try him?”

“Okay, I suppose.”

“So, it seems that in order to get the ruling you want, the Court will have to ignore precedent, the common law, and the plain meaning of the constitutional text. What am I missing?”

“I don’t know, common sense maybe?”

“The Constitution says that all ‘persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ What about common sense tells you that the Constitution doesn’t mean what it says?”

Dean thought for a moment, then said, “Okay, well maybe it’s time to change the law.”

“How?”

“Amend the Constitution so that those born in the United States aren’t citizens if their parents are in the country illegally.”

“I suppose that means that hospitals would be required to check the immigration status of the parents of babies born in their facilities.”

“Sure, why not?”

“So, it would be a good idea for expecting parents to have their birth certificates handy.”

“Sounds good to me.”

“And if they can’t produce them, what should the hospital do? Hold on to the newborn until the parents produce proof of citizenship?”

“No, the parents can take their baby. The baby just won’t be considered a citizen until the parents can produce their birth certificates.”

“And what will we have accomplished under this new regime?”

“We’ll stop this scam of illegal immigrants having babies in our country and making them citizens.”

“And what will that do for us?”

“It will discourage illegal immigrants from doing that.”

“And why is it a bad thing if they do that?”

“Because they’re creating citizens who shouldn’t be citizens.”

“And why shouldn’t they be citizens?” 

“Because their parents are in the country illegally.”

“Don’t you see that you’re arguing in circles? Your argument is that babies born to illegal immigrants shouldn’t be citizens because they’re born to illegal immigrants.”

Dean smiled. “You know what I’m saying, Socrates.”

“What are you saying?”

Dean stood up. “You know what the problem is, and I shouldn’t have to explain it to someone as intelligent as you.” And with that he left the room.

When Dean closed the door behind him, I said to Socrates, “I think he means that children born to illegal immigrants will increase the percentage of citizens without European ancestry.”

“What’s so great about European ancestry?” Socrates asked. “Didn’t both world wars take place in Europe?”

 

—Jack Quirk