Brujo Feo's Sendero

I'm a Libertarian. I support gun rights and gay rights; I support reproductive rights and recreational pharmaceutical rights. I support your right to privacy and your right to your own wallet. I'm against the draft, and taxes, and compulsory state "education." If you're not for liberty, what difference should it make to me which particular stripe of totalitarian you are? --Brujo Feo

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Location: Ventura, CA, United States

Saturday, September 30, 2006

An Open Letter to Morton Marcus

    Greetings, all.

It will probably come as no surprise to those who know me that my first post on my new blog would have something to do with the Second Amendment, or some other subject dear to the heart of an anarcho-capitalist. But in fact, I rarely talk much about the Second Amendment any more, except in the context of the War on Some Drugs.

But I can be provoked.

Enter one Morton Marcus, a gentleman who bears a disturbing resemblance to Al Franken, and who has a stupefyingly silly column posted with the Noblesville Ledger at

Of Mr. Marcus, we learn:

"Indiana economist Morton Marcus has studied and written about the Indiana economy for more than 30 years, during and after his long association with Indiana University."

I should resist the temptation to observe that ignorance on this level is not often to be found outside academia, but as you see, I couldn't quite.

So my open letter to him:

* * * * * * * * * *

Dear Sir:

I see that your column has inspired a fair amount of invective. Unfortunately, I can't say that it is undeserved. One can wish that the republic would be free of such historical misunderstanding, but it should come as no surprise that one is as likely--or more so--to find it in academia.

Rather than turn up the heat, however, let me see if I might shine a bit of light.

You state:

You and I are not constitutional lawyers,

Well, I'm not sure what a "constitutional lawyer" might be, but I am a lawyer, and I demonstrably have as fair an understanding of the Constitution as most, and certainly far more than any Supreme Court justice. Although, of course, that would be at best damning with faint praise. For example, I can see that proscription of recreational pharmaceuticals is found nowhere in the Constitution, let alone in Article I, Section 8. So clearly all federal drug laws are unconstitutional. Yet you may search in vain for a single justice who understands something so simple. But I digress--we were discussing the 2nd Amendment, yes?

but let's try to understand that single sentence.

Kudos to you for saying "understand," rather than "interpret." Now if only you would understand.

Why shall the right of the people to bear arms not be infringed?

Well, first of all, "why" is simply not an issue. The concept that you're misunderstanding is called "precatory language." One need not be a constitutional scholar (whether a lawyer or not) to understand this; any probate lawyer can explain it to you. Two examples may suffice:

Suppose a will says: "Because I know that Bob will always be a UCLA fan, I leave Bob $1,000,000.00."

Two months later, Bob falls in love with a USC cheerleader and switches teams. Does Bob have to give back the money? Nope.

A little-known fact: the original 1st Amendment said (OK, this is not actually true, but...): "A well-educated populace being necessary to resisting the British invasion, the right to own and read newspapers shall not be infringed."

Eventually the British gave up their colonial claims and went home. Is it now OK for the government to confiscate all of the printing presses?

According to this Morton Marcus fellow, it is. Is he correct?

Because a well-regulated militia is necessary to the security of a free state.

At the time that these words were written, the word "regulated" meant "equipped." * You can look it up. A responsible scribe might think that to be a good idea, in fact.

In other words, the 2nd Amendment isn't about taking orders from the government; it's about having good weapons. Native English speakers might be expected to know this, even if they are college professors. Or they can do their research and find out.

How many gun owners are members of a well-regulated state militia?

Well, as it turns out, that would be every male between the ages of eighteen (usually) and "it depends," depending upon which militia you're describing. You might want to look at the 1792 Uniform Militia Act, for starters, and then look at what different states have done from time to time. But the short answer to your question is: "...well, you are, just for starters." Your ignorance of the fact that you're in the militia (or were, anyway--some statutes limit the age to 45, and I don't know how old you are) doesn't change the facts.

Isn't a gun more likely to be used to settle private disputes that have nothing to do with the security of a free state?

And your point would be? I think that what you have here is called a non sequitur. But let's not flinch away from the original purpose of the right. This may surprise you, but the original intent of the 2nd Amendment was to protect the people (you can fall into arguing the false dichotomy of whether it's an "individual" right or a "state" right--for our purposes here it doesn't matter) from their government. That's right; it's not about shooting ducks. (Can you imagine if the right were "interpreted" to mean that you could pick tomatoes? That's how stupid the "hunters' rights" argument is.) It's about shooting soldiers and policemen. Now, you may be uncomfortable with this. But my copy of the U.S. Constitution is silent on the subject of Mr. Marcus's comfort level. Maybe it's missing a page.

Some of the founders' comments about this were rather inflammatory. I like Tench Coxe's, myself (emphasis mine):

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

Jayzus! What kind of wack-job talks openly about shooting cops and soldiers? Well, those would be the guys who wrote and signed the Constitution.

For the 2nd Amendment to be about rights possessed by the government, and not the people, would be simply extraördinary. It would be the only expression in the entire Constitution about such rights. (What about the 10th Amendment, say you? Nope--notice that the 9th, which talks about "the people," uses the word rights. The 10th, discussing the States, uses the word powers. Pretty sharp, those founders were! They actually could understand and use words in meaningful ways!)

This is why the so-called "standard model" of the 2nd Amendment has always been a lie, and why the overwhelming weight of constitutional scholarship--even among so-called "liberals" who aren't exactly happy about it--is that it means what it says. E.g., Lawrence Summers, ** Akhil Reed Amar, etc.

One last point--you say:

To reduce gun-related murders, get the guns out of the hands of private citizens.

This is not a constitutional issue of course; it's a practical argument. It's also one of the silliest damned things I've ever heard. You're familiar with the notion that an ounce of history is worth a pound of theory. Yes? Currently, if I recall correctly, and there hasn't been new legislation since I last checked, there are 17 "conservative carry law" states, where you apply for a permit to carry a handgun, and you don't get one unless the police want to give you one. There are 32 "liberal carry law" states, where you apply for a permit to carry a handgun, and you get one unless the police can cite a narrowly-defined statutory reason why you shouldn't get one. Guess which states have lower crime rates?

Ah, but say you, they have lower crime rates for other reasons. OK, try this: the historical trend has been for states to move out of the conservative column into the liberal one. What has happened to crime rates in those states as they have made it easier to carry guns?

I think you can see where this is going, yes? Why don't you do the research yourself? Then you can write a column retracting the silly one you wrote.

Oh, by the way, 32 + 17 = 49. That leaves Vermont, which last I checked, had no permit system, period. You want to carry a gun? You carry one. You don't ask the police for the "permission" which was guaranteed to you long before there was a 2nd Amendment.

Guess where Vermont is on all kinds of crime statistics... Again, I think you can see where this is going, yes?

Terence Geoghegan

The Law Offices of Terence Geoghegan
4510 East Thousand Oaks Boulevard, Suite 200
Westlake Village, CA 91362-3876

tg (at)

"In the end they will lay their freedom at our feet and say to us, 'Make us your slaves, but feed us."
--Dostoevsky's Grand Inquisitor

* [2013-01-31]: Sloppy writing on my part; I should have corrected this years ago, when the error was first pointed out to me. Rendering "well-regulated" as "properly equipped" in modern parlance is a bit simplistic. Closer would be "properly equipped and trained." In other words, in good working order--ready to deploy.

** [2013-01-13]: Even sloppier...I can't believe that no one picked this one up. The reference should of course have been to another Harvard professor, Laurence H. Tribe. I should also have mentioned Sanford Levinson.