Dick Metcalf has a back-page editorial [pdf] in this month’s Guns & Ammo that seems to have annoyed a few folks. The guy can be divisive, but then again, most gun writers are at some point. Some of the troubling things Charles Askins or Bill Jordan said over the years have faded into selective recollection, but things are different now. The internet never forgets.
Metcalf refers to regulation as the “initial criterion” of the 2nd Amendment. While that statement is not wrong in and of itself, he takes things off in a surreal and rambling direction.
I bring this up because way too many gun owners still seem to believe that any regulation of the right to keep and bear arms is an infringement. The fact is, all constitutional rights are regulated, always have been, and need to be.
This is the part where he hacked off no small amount of people. But let’s take a step back.
Regulation has always been part of the 2nd Amendment. Infringement has not. They are two different things.
In the Founders’ day, ownership and maintenance of militia-worthy firearms was required. Rosters (read: registration) were kept, and musters were held in public so officials could inspect and take inventory. If the public need was deemed great enough, those firearms could be “impressed” into government service on a temporary basis.
“Well regulated” meant many things. Justice Scalia read it to mean “the imposition of proper discipline and training” in the Heller decision. James Wilson, Pennsylvania representative to the drafting of the Constitution and one of the first Supreme Court justices, once remarked,
I believe any gentleman, who possesses military experience, will inform you that men without a uniformity of arms, accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.
So that’s the “well regulated” part of “well regulated militia.” Metcalf could have made an interesting article had he discussed those ideas. Instead, he asks where the line between regulation and infringement lies but dissembles into analogies to car ownership.
I know he didn’t ask, but I’ll fix it for him anyway. The militia clause was referred to by Justice Scalia as the prefatory clause. The second part (“the right of the people”) is called the operative clause. This is where we look at infringement.
The textbook definition is: a breach, violation, or disruption. Infringements don’t make things regular or disciplined; they screw things up. The Founders didn’t want that.
So, what did they want? The prefatory clause calls for a civilian militia, equipped and trained with consistent and effective arms. Some oversight from local governments to that end was implied. However, the operative clause preserves the right of citizens to keep and bear their own guns for their own uses. There’s two things in that amendment, folks. They are related, but they are not inseparable.
When Metcalf finally gets around to something resembling a point, he addresses Illinois’ new concealed carry law. Applicants for a license must show 16 hours of training from an approved source to qualify for a license. He claims this is not only justifiable but laudable, and that such a requirement is acceptable since it constitutes regulation.
Sorry, but no. It would be regulation if it were part of joining a militia. It isn’t. Since it affects the exercise of an individual’s right to bear arms (something confirmed in Aguilar and quoted by Metcalf), it’s infringement.
To wit: regulations and infringements are different things. For the purposes of the 2nd Amendment, there are regulations on militias, but infringements on individuals. Let’s keep that in mind when we hear politicians talk about “reasonable regulations” on privately-owned guns.