Dick Metcalf, a long time writer and editor at Guns & Ammo magazine managed to enrage many readers recently by writing an article “Let’s Talk Limits” in the December 2013 issue. He has since been fired by Guns & Ammo and editor Jim Bequette who apparently approved of the initial article, and who later apologized for it, has resigned.
Many have tried to portray this incident as a clear sign of the total and complete unreasoning extremism of many gun owners and readers of Guns & Ammo. Any point of view has its extremists, that is always true, but there may be another mostly under appreciated facet of this imbroglio that may have more to do with how Metcalf reached his conclusion than the actual conclusion itself.
Note carefully: Those last four words [of the 2nd Amendment] say “shall not be infringed.” They do not say “shall not be regulated.” “Well regulated” is, in fact, the initial criterion of the amendment itself.
I have underlined above where he starts to step in the poo. He continues to write:
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. …But many argue that any regulation at all is, by definition, an infringement. If that were true, then the authors of the Second Amendment themselves should not have specified “well regulated.”
The 2nd Amendment begins with:
A well regulated Militia, being necessary to the security of a free State, …
What the writers were talking about being well regulated was the militia. In no way were they saying, or even remotely hinting, that they were talking about regulating firearms in the above verbiage. Many of those involved in drafting the 2nd Amendment had personal experience with the efficacy of civilian militias from as early as the French and Indian Wars up to the Revolutionary War. They were deeply concerned that the states would do their duty to properly regulate their respective militias in regards to training, equipment, and leadership. They had personal experience with ill-equipped, badly trained, and often nearly useless militias in warfare.
What I shall call the “militia part” of the 2nd Amendment is purely explanatory. It in no way grammatically or logically limits “the right to keep and bear arms” on the existence of a militia or an individual’s participation in a militia. That was what the Supreme Court ruled in District of Columbia v. Heller.
J. Neil Schulman’s “The Unabridged Second Amendment” is a classic example of how modern researchers have clarified the meaning and grammar of the 2nd Amendment. In that article Schulman consults with the late Roy Copperud, a renowned expert on the usage of the English language (check out the link above to Mr. Copperud’s obituary in the New York Times or the link to Schulman’s article). Here is part of their dialogue:
Schulman:] “(1) Can the sentence [2nd Amendment] be interpreted to grant the right to keep and bear arms solely to ‘a well-regulated militia’?”
[Copperud:] “(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.”
[Schulman:] “(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement ‘the right of the people to keep and bear Arms, shall not be infringed’ null and void?”
[Copperud:] “(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.”
Again it was research and thinking along this line that largely contributed to the arguments presented to the Supreme Court that led to the decision in District of Columbia v. Heller which is undoubtedly the most significant ruling ever on the real meaning of the 2nd Amendment.
What Dick Metcalf did in trying to justify his views by reference to “well regulated” in the 2nd Amendment was to resurrect the view, a view held by almost all gun banners, that the “right to keep and bear arms” is somehow conditioned by the existence or non-existence of a militia and that somehow justifies just about any regulation they can imagine.
I think that is what really pissed off a lot of people. Metcalf was using a principle that the gun banners always resort to in their arguments to denigrate the idea that the 2nd Amendment confers an inviolate individual right.
Metcalf asks this question:
The question is, when does regulation become infringement?
In my view former President of the NRA David Keene had a good answer which I once saw him express in a TV interview. I have not found an online quote so I will have to paraphrase it as best I can – apologies in advance to Mr. Keene if unintentionally misrepresent him.
His basic contention was that background checks per se do not infringe if they do not materially impede a law abiding person’s ability to buy and take possession of a firearm whenever they want to. So if I go to my local Academy sporting goods store and decide to buy a handgun they will go through the NICS background check on my application and that will typically complete in a few minutes. I fill out the required form 4473 and quickly am on my way home or to the range with my new gun.
However if I have to wait for a background check that takes days or have to endure a “waiting period” before I can take possession then that is infringement. If I have to prove to the government that I am indeed qualified (as opposed to government proving I am disqualified) then that is an infringement. Barring some common sense disqualification that is on the record I should be able to buy and take possession of a firearm. Period.
I think I agree with David Keene on that one.
The real anger at Metcalf’s argument is not that most reasonable people think no regulation of any kind whatsoever is ever justified. I think it is largely motivated by how he reached that conclusion, and how strongly his method of reaching it parallels how the gun banners and anti-gunners reach their conclusions.
Supreme Court Justice Antonin Scalia had a good take on this. Quoted from the following link:
“Yes, there are some limitations that can be imposed … What they are will depend on what the society understood was reasonable limitation [when the Constitution was written]. –Did Dick Metcalf deserve to be fired over Guns & Ammo column on 2A limitations?, www.guns.com
It is not the “militia part” of the 2nd Amendment that justifies some regulation of firearms. It is simply common sense. It is common sense that we should try to keep guns out of the hands of the dangerously mentally ill or habitual and violent criminals. But the 2nd Amendment itself says nothing to justify regulation.
Dick Metcalf justifiably lost his job because apparently his understanding of the 2nd Amendment seriously lagged behind how well informed readers of Guns & Ammo understood it. Metcalf’s views justifying regulation would probably have not caused an uproar decades ago, but today gun owners are a lot more informed than they used to be.
Just for the record I re-upped my subscription to Guns & Ammo for another two years just before this came out and I have absolutely no intention of canceling it. Guns & Ammo is a great magazine (along with Shooting Times and a few others). With the departure of a couple senior editors they have been sufficiently censured for a mistake which I doubt they will make again any time soon. If you subscribe to them you should also be getting The American Rifleman magazine which comes with membership in the NRA (and if not, exactly what is your problem?).