a citizen’s journal by Thomas Nephew

“A well regulated militia” slips away

Posted by Thomas Nephew on November 12th, 2002

A good while back I mentioned I was reading an article well-regarded by gun rights supporters, “All the way down the slippery slope,” by David Kopel and Joseph Olson. Instead of sticking to my resolve to “jot down a thought or two” now and then as I read through the piece, I made my usual mistake of reading the whole thing, then reading five other things, getting the pages all jumbled up, and feeling like it would be a waste of time to inflict my thoughts about it on anyone.

But that wouldn’t be fair (to Kopel and Olson, I mean). In truth, their article, subtitled “Gun prohibition in England and some lessons for civil liberties in America,” does a good job of what the title promises to do. That is, it delivers a cautionary tale of rights gradually abridged too much in England by a variety of means. It also succeeds in alerting the concern of American readers like myself who have generally given little thought to what gun rights and other freedoms have in common, and have generally given little thought to English gun rights in particular.

In that last post about the gun rights slippery slope, I argued that English gun rights were never all that unrestricted, using Kopel and Olson’s own evidence. The strongest affirmation of English gun rights followed England’s “Glorious Revolution” of 1689, in a Parliamentary act stating that “the Subjects which are protestants may have Arms for their Defense suitable to their Conditions and as allowed by law (emphases added). Drawing attention to the “which are protestants” part of the statement, I suggested that

Thus, even the earliest instance of the right to bear arms was not an unalloyed right, but rather one tempered by if not indeed determined by, shall we say, practical considerations about the safety of the state and the stability of society.

But the rest of the phrase is obviously even more damaging to twentieth century gun rights advocates seeking support in the English legal tradition for untrammeled gun rights. The authors cite historian Joyce Lee Malcolm, who spun the obviously careful phrasing by taking the long view:

…The vague clauses about arms “suitable to their conditions and as allowed by law” left the way open for legislative clarification and for perpetuation of restrictions …. But though the right could be circumscribed, it had been affirmed. The proof of how comprehensive the article was meant to be would emerge from future actions of Parliament and the courts.

By 1780, it would appear, several — but not all — of the “circumscriptions” had vanished, so that an important government lawyer could state:

The right of his majesty’s Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable.

All well and good — and all an indication of a steady expansion (whether by “slippery” means or not) of the understanding of gun rights during the hundred or so years separating the two statements. It at least establishes that rights need not decay steadily, even when not guaranteed by a constitution.

Still, the best case gun rights advocates make against gun regulation is often against the “slippery slope” towards gun confiscation they fear. A more theoretical and very interesting treatment of “slippery slopes” in general is Eugene Volokh’s “Mechanisms of the slippery slope,” a treatise I’m working my way through now.* It seems relatively clear that Dr. Volokh is libertarian and an advocate of broad gun rights; he is also a very intelligent, fair, and clear writer. The only reason his article is slow going for me (other than my own limitations) is that I’m looking for some hints about my particular view about the gun rights issue in the United States.

Just what is a slippery slope? Dr. Volokh offers the following definition: they are

situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose.

But as I see it, the problem is with the gun issue is that it’s “slippery” in two directions, not one. Just as gun enthusiasts fear unjustifiable seizures of guns “suitable to their condition” so gun skeptics fear unjustifiable ownership of arms inappropriate to private use. And every up- or down-vote of a gun regulation measure “slices the salami,” to use another favorite phrase, in favor of one point of view, but against the interests of the other. Handguns untouchable? Then try automatic weapons… but if you lose there the body of voters who come to view a right to 100-bullet per minute (or whatever; I admit I don’t know) automatic rifles as unassailable grows. If you win, people with handguns get angry and defensive. Etcetera, ad infinitum.

Second Amendment thought experiment
What arms are and aren’t appropriate to private use? The distinction is hard to define, yet it clearly exists: I should think none but the most doctrinaire (Second-Half-of-the-) Second Amendment advocates would discover a right for an American to own a nuclear or even a mere VX nerve gas warhead in the Constitution. Yet it is the first half of the Second Amendment that most clearly makes that distinction possible. And as a matter of the apparently growing body of “slippery slope theory,” it illustrates (to me at least) that Second Amendment rights are in a particular class of their own — and rightly so.

Consider these alternative versions of the Second Amendment:

  • A: 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.
  • B: The right of the people to keep and bear Arms, shall not be infringed.
  • C: Congress shall make no law respecting the right of the people to keep and bear Arms.
  • As I’ve pointed out before, judging by their web site, the NRA would have us believe that version (B) is the true Second Amendment; I imagine that in a pinch, version (C) might be acceptable as well. But of course, version (A) is what was settled on, and we may infer that the Second Amendment as written confers both the right to bear arms and the State and federal prerogative to regulate that right with a view to effective and controlled militias, i.e., roughly speaking, non-military citizens enrolled in lists of arms-bearing people levyable by their State, or at least subject to the protocols governing such a need by their State.

    Not that I should need to defend that prerogative, but both common sense and political theory demand that the right to threaten lethal force is at best secondary to, and then only when supportive and respectful of, the rights to life, liberty, and due process of law. The prerogative to determine the bounds of lethal force available to citizens must be via constitutional authority, not individual whim.

    As readers can guess, I would extend a ban on completely untrammelled, private ownership of weapons well past nerve gas warheads, and right down to the so-called “assault weapons” and automatic pistols. The only way I see to handle the ever-changing variety of armaments available on the open market is to establish “schedules” of weapons, subject to review by the appropriate legislatures and courts, and likely delegated to the appropriate State agencies.

    Such schedules would establish that certain weapons would be restricted to use by the federal or State governments and not allowed to be owned or used in any other circumstances, others whose use and storage would be zoned to specific locations, times, and registered users, and some broadly drawn class of single shot weapons that would only need to be registered with a State government. No matter what firearm was involved, I would support a periodic ballistic re-registration program to deter the use of firearms as a means of murder.

    None of this amounts to confiscation, except at the “nerve gas” end of the arms spectrum, but it’s true that any of these measures are arguably first steps in that direction. But it’s just as true that successful opposition to such measures are arguably first steps towards ever-widening definitions of “the right to bear arms.”

    The trouble with slippery slopes
    The trouble with slippery slopes is that they’re often slippery in both directions. With the Second Amendment right to bear arms, it’s as if we’re skating down an icy road with gun confiscation on one shoulder, and an intra-national arms race on the other, one that either drives many citizens to participate in that arms race against their own preferences, to flee to some temporarily safer community, or compels them to resign themselves to a Hobbesean world of danger, random violence, threats, and intimidation. It’s not merely the crimes committed with guns that are at issue. It is the sense of community, of safety, and of an alternative view of “the common defense” that are denied to us by a society awash in guns and weapons of every caliber, design, and purpose.

    I’d submit that many of us feel we’re much closer to that second shoulder than the gun confiscation one. It seems to me a measure of that slippage that some people seriously saw the recent DC sniper outrages as cause for supporting greater access to guns, or that gun rights advocates berate those who support gun control measures as “social classes expressing and enacting their caste superiority” or the like; that’s likely a fair description of some gun control supporters, but it’s just as surely not true of all of them. There is a culture clash between gun advocates and gun skeptics, no doubt, but the contempt and incivility are being fired, as it were, in both directions across a no-man’s land of common sense.

    One of Dr. Volokh’s favored methods for demonstrating a slippery slope is to posit a number of groups with different preferences between “0″, the current state of affairs, “A”, the innocuous first step policy, and “B”, the strongly undesired end result, at least for some citizens. But the key artifice in many of his demonstrations of this sort is that no one changes their mind as “bad B” becomes more likely. In other cases, only the “attitude changes” making “B” more likely are assumed. While it’s natural for a theoretician to develop examples that abstract away the “complications” of real life, the cumulative effect of Volokh’s “slippery slope” theory is to abstract away all the factors that impede “sliding all the way down the slope”, and leave intact only the message that I’ll paraphrase as “it’s best to resist right away.” If the slope is slippery in both directions, that’s obviously a recipe for political trench warfare.

    The other artifice, as I’ve implied, is that there is generally no clear acknowledgment of the consequences of “0″ being equally undesired by other citizens, or perhaps of a third state “C” describing the outcome they fear. I would argue, without working out a treatise (quite) as long as Dr. Volokh’s, that when countervailing constitutional rights are at stake, the dispute must eventually return to the political and cultural world, a world where compromise, arbitrary distinctions, and preferably some mutual understanding are necessary. Thus we have a more or less arbitrary Roe v. Wade cutoff point for abortion rights (to be sure, without appreciable mutual understanding by the pro-choice and pro-life groups), and thus we might have a more or less arbitrary cutoff point for gun rights.

    The common solution offered by gun rights advocates is that the only conceivable quid pro quo for gun regulation would be a“formal holding in a Supreme Court case. And a clear pattern of both lower and higher courts treating gun rights the way they treat the other rights in I-X: expansively,” to borrow from an e-mail I’ve received. That sounds fine, but it’s difficult to see what’s in it for gun skeptics, or how long the pattern would have to continue to satisfy my correspondent. The victories envisioned in the e-mail above would be completely one-sided; why advocacy groups like the NRA would suddenly welcome gun registration or any other limitation on gun rights at the zenith of their courtroom successes is not clear to me.

    The real solution might be, and perhaps ought to be, political first and judicial second. Were groups of gun rights advocates and gun regulation advocates to find common ground within the Second Amendment, that would be a start towards drafting gun regulation laws that might withstand judicial scrutiny, guarantee certain gun ownership rights, and limit or deny others. It might educate gun skeptics about the validity and value of the right to gun ownership, and gun advocates about how necessarily limited those ownership rights have always been.

    Of course, that seems about as likely as pigs flying. But it doesn’t hurt to think about it. Who knows; to quote the great political theorist Jiminy Cricket:

    When you wish upon a star, makes no difference who you are. .
    Anything your heart desires
    Will come to you


    *There is also an online Acrobat (.pdf) version of Dr. Volokh’s paper.
    Edit, 11/13: “too much” added, 2d paragraph.

    Leave a Reply

    XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong> -- (comment rules)