In June of 2018 I came across the paper A Unique, Stand-alone Second Amendment Implies That Both Heller and Mcdonald Were Wrongly Decided by David Weisberg. I found it more interesting than the corpora analysis Neal Goldfarb was doing in the Language Log post which led me to it, and I decided to email him. I forgot about our exchange until reading another Goldfarb post inspired me to go back to it and then turn it into a blog post. My two emails are after the jump (with the addition of links that I didn’t include then but think would be helpful now), his reply will be added if he grants permission. UPDATE: Permission was granted, and they appear below.

Subject: Pre-existing vs natural rights, and state vs federal restrictions
I was alerted to your paper via Language Log and found it both unique & interesting. Your example of North Carolina’s 1776 constitution inspired me to examine the rights it. I see that directly after XVII (containing the right to bear arms), article XVIII begins with the nearly identical language “That the people have a right to assemble together”. We might infer that that this right was not a pre-existing “natural” right, but like the right to bear arms was created by the state of North Carolina (although the United States constitution has no obligation to follow North Carolina in that limited view of said right). Neither of those articles begin with reference to a right and then prohibit its infringement, but XV states “That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained”, implying that it is different from those state-granted rights. However, right after the right to assemble, article XVIV says “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences”, indicating that this constitution may state which “natural and unalienable” (rather than merely state-granted) rights men have.

The right to assemble is also interesting, because in the First Amendment to the US constitution it is the one section described as being part of “the right of the people” (like the Second Amendment), although “and” suggests that also modifies petitioning the Government for a redress of grievances. The rest of the First Amendment speaks more in terms of infringing “the freedom of” various actions, which again is the language used by North Carolina to describe use of the press (the only such instance of the phrase, although XXXII adds “and safety of the State”).

The existence of these grants of the right to bear arms in state constitutions seems relevant for the question of whether it was simply a matter of the state vs federal government. North Carolina could have included such an article merely for rhetorical effect as a warning to the government of England (or the Continental Congress) that they would not tolerate any other government restricting such a right (which would make sense for a state adopting your interpretation of the Second Amendment after its adoption), but the most natural reading of the law is that it prohibits the state government from abridging such a right (just as it may not also prohibit its people from peaceably assembling, exercising their freedom of the press, or their natural & unalienable right to worship God as they choose). If the right in the North Carolina constitution is intended “for the defence of the State” (meaning North Carolina), might then the amendment to the US constitution describe the right as “being necessary to the security of a free State” in reference to the United States itself? This would be the same logic: the constitution of a polity prohibits its own government from restricting a right intended to preserve that very government. As you note, references to “a foreign State” cannot be references to constituent members of the United States but independent polities. The amendment could have stated that it was necessary for the security of the United States, but if written by people who believed its logic applied to any “free State”, they would feel no need to be so restrictive, particularly if they believed it applied to both the whole and its individual parts.

In your paper you ask why the Second Amendment exists independently rather than including the right to keep & bear arms in the first. But it seems notable to me that the First is the only amendment to begin with “Congress shall”. The Third Amendment protects an individual’s right not to have soldiers quartered in their home (except in time of war & as prescribed by law), but it was not included either. Nicholas Quinn Rosenkranz in “The Subjects of the Constitution” and “The Objects of the Constitution” (both available on SSRN) argues that the different amendments were intended to apply to different branches of the government, so it would do violence to their meaning to make all of them resemble the First in their reference to Congress. For example, if the President violates the Fourth Amendment by searching someone’s home & seizing their property without a warrant, the homeowner is not required to wait for a potentially feckless Congress to do something about it.

I should preface any discussion of incorporation by saying that it is tricky to do a simple replacement on the Bill of Rights because it was not written so as to be incorporated in such a manner. That being said, your substitution is not simply mechanical in that you don’t add “No state shall” while keeping “Congress shall make no law” in the first amendment. Could it not be the case then that a similarly logical modification to the rule for the second amendment would be “Each state shall ensure that, a well regulated Militia being necessary to the security of said free State, the right of the people to keep and bear Arms, shall not be infringed.”? The authors did not write it that way because they didn’t expect your proposed modification (and they might not have used “said” in that manner just as they never used “polity” in the constitution, but I am unfortunately neither an historian nor linguist). This version would not suggest that it is the security of the United States which is being ensured, but I’m not claiming here a single correct interpretation of the constitution. Even your original version actually reads as coherent to me, though too clunky to be recognizable as something they would ever write.

As the constitution was not written in the expectation that it would be incorporated against the states, I think it’s helpful to imagine its application immediately after the adoption of the Bill of Rights and before the Fourteenth Amendment. We can imagine further that a new state is added to the United States, and it arrives as a blank slate with no laws concerning arms whatsoever in its state constitution or statutes. May the federal government prohibit the inhabitants of that state from keeping & bearing arms, whether in a militia (which has not been formally established) or otherwise? Or if the law applied nationally, would it be considered constitutional as applied in that state but not in any of the states whose constitutions did protect a right to arms? Scalia only referred to four states as having analogues to the second amendment prior to the Bill of Rights, so could the first Congress have applied your hypothetical unconstitutional law against the rest of the states? It would seem logically coherent for certain states to reserve police powers for themselves in this area which the federal government was denied (even applied to them), as was the case for those powers not enumerated by the US constitution. If instead we are only concerned with what was prohibited by the statutory law of the state (rather than which statutes would be prohibited by the state constitution), it would seem odd if the scope of the federal power was to outlaw precisely that which the state had already outlawed itself.

Since you have no obligation to read through commentary on your work from a stranger on the internet, I’d like to thank you if you actually did read through all this. None of the above should be taken to say that you are obviously wrong, only that I did not find it all obviously correct. I can only hope that any discussion might result in a more obviously correct version of an argument whose conclusions I find plausible.

I had intended to include a scifi hypothetical as a palate cleanser after all that textual analysis, but forgot. This a question about natural rather than positive law:

A mad scientist (or Roko’s Basilisk) invents a weapon that does not immediately kill its victim, but instead causes the maximum possible suffering for the rest of their life. A government whose political philosophy is rooted in natural rights signs onto international agreements prohibiting the use of this weapon in any war, and declares that it would also be too “cruel and unusual” to be used as a punishment for any crime. May it also prohibit its citizens from using this weapon in any circumstance, or would that be a violation of the “unlimited” right of self-defense?

Weisberg’s responses:
Hello, Mr. Nock…thank you for the interest you’ve expressed in my paper. I will read what you’ve written carefully, but I haven’t had the time to do that just yet. With regard to your “palate cleanser,” however, I can say this. Governments prohibit citizens from using all sorts of weapons. Here in the US and, I would assume, in virtually every other country in the world, it’s illegal for a private citizen to possess or use a hand-grenade. If, however, I happened to have a live hand-grenade at the moment I was unlawfully attacked with deadly force by an aggressor, I could use that hand-grenade to defend myself. Two legal conclusions, I think, would follow: (1) in a prosecution against me for homicide, I would have a valid defense of self-defense, regardless of the fact that it was a crime for me to possess the hand-grenade, and I would be acquitted of unlawful homicide; (2) in a prosecution against me for unlawful possession of a hand-grenade, I would be found guilty. These exact same two results would obtain, I think, in your scifi hypothetical.

Hello, Mr. Nock…I have now read your email in its entirety. There were parts I didn’t understand.

However, let me say this: when I ask why is there a stand-alone 2nd Amend at all, I mean to be understood as asking: if Scalia is correct in his interpretation of the Amend, then would there be any reason to have a stand-alone 2nd Amend? I think the answer to that question is “no,” and therefore, by way of a reductio ad absurdum argument, I think I’ve shown that Scalia’s interpretation is incorrect. It must be remembered that Scalia himself says, at one point in his Heller opinion, that the source of the right to keep and bear arms is the “police powers” of the State, and in this he is explicitly following the precedent in Cruickshank. You will find the relevant cites at pages 25-26 of my paper.

To my mind, it is clear that, if the source of the right to keep and bear arms is always the constitution and laws of some State, and if this right pre-exists and is independent of the 2nd Amend, then (a) the 2nd Amend does not bar the District of Columbia (which is not even a State) from banning handguns, and (b) it does not bar Illinois from banning handguns in Chicago. You cannot coherently “apply against” a State a rule that says that, whatever right a State grants to its residents to keep and bear arms–whether that right is broad and extensive, or narrow, or non-existent–that right may not be infringed by the federal government. I think the 2nd Amend effectively says just that, and that’s why I think McDonald is wrongly decided.

Months later when I decided to turn this into a blog post and asked permission to publish his emails, he had some more thoughts on the hypothetical:
Hello, Mr. Nock…you certainly may publish my previous reply, and this one, too.

I never responded to your “scifi” hypothetical. Here is my response. It seems that the banned weapon you’re imagining doesn’t kill, it merely inflicts life-long pain. In the end, that makes no difference to the result in law.

Suppose you and I are together, riding in a subway car, and without any sufficient provocation whatsoever I pull out a pistol (which I am not properly licensed to own or carry) and shoot you, grievously injuring you for the rest of your life. I am obviously guilty of some degree of felonious assault with a deadly weapon, and I am also guilty of violating the gun control laws, so I have committed two crimes. The exact same result would follow if I used the banned “scifi” weapon in the same circumstances: I would be guilty of felonious assault and also of a violating the ban on that weapon–two crimes.

Now, suppose we’re together, riding in a subway car, and without any provocation you pull a gun on me and threaten me with imminent deadly force, and in response I pull out a pistol (which I am not properly licensed to own or carry) and shoot you, grievously injuring you for the rest of your life. In that case, where you are the aggressor threatening the use of deadly force, I am NOT guilty of any kind of felonious assault, because I acted in reasonable self-defense, but I am guilty of violating the gun control laws. So, I have committed one crime, not two. The exact same result would obtain if I used your “scifi” weapon in those same circumstances–I would be guilty of violating the ban on that weapon, but I would not be guilty of any kind of felonious assault, because I used the illegal weapon in proper self-defense.

See: 1984 New York City Subway shooting