The main thing that became clear after reading Moros’ responses is that he is playing by a different set of rules than those typically used in reasonable discussions of history, law, and logic more broadly.
The central question driving this discussion is whether “… the right of the people to keep and bear arms shall not be infringed” refers to a militia-based right, an individual right based on self-defense, or both (with both being a victory of an individual right). Keep in mind that this is NOT a discussion over whether an individual right can be found in natural law or common law. There is a well understood individual right under natural and common law, and that right falls under the social contract and can be regulated by the government, though the scope and boundaries of such a right is an open and ongoing question. That is entirely different from a constitutional right that would prohibit such regulations on such an individual right, despite Moros’ consistent attempts to muddy the waters between natural, constitutional, and common law.
How Stevenson and I approach the question is straightforward: What is the historical context of those words, and what did they mean at the time? It is somewhat amusing that Moros admits that “textualism is so important,” but then only applies such an analysis to the words “well-regulated.” Ironically, this also seems to be the only time Moros acknowledges that a first half of the 2A even exists, but more on that in a bit.
As an aside, the idea that well-supplied and well-disciplined doesn’t require government restrictions/regulations (in the modern sense of the word) is just deeply unserious. You had registries of who was in the militia, you had inspections, you had drilling, you had ammo and weapon storage regulations, you had major oversight on who precisely was allowed/required to serve, you had at least attempts at standardization to ensure proper logistics. The idea that all of that happened without government interference/restrictions is bizarrely ahistorical. And yes, that mostly happened at the state level because that was what the 2A was about according to the collective/militia view, keeping the federal government from interfering with state militias.
Anyways, back to the straightforward approach. For what words meant at the time, I agree that textualism is important, and when applied to the 2A in full it annihilates Moros’ claims. While “infringe” could mean the same thing as “abridge,” there was a distinction between them in legal language. There is a lot of historical work done on this that provides massive evidence Madison was using this as legal language (particularly as he uses “abridge” elsewhere in the constitution). Moros only offers a single dictionary source for common language use, which is not remotely serious when compared with the substantial evidence professional historians have compiled (there is literally an entire book on the topic of “infringe” as Stevenson provides in his first article).
Then take “keep and bear arms.” Moros’ response here is especially weak, which to be fair really isn’t his fault given how ahistorical and badly thought through Scalia’s opinion was on the topic. There was a substantial amount of evidence at the time that bear arms was used almost exclusively in a military context, and there was no substantive reason to believe the word “keep” changed that. Apparently Moros has never heard of an arsenal, where a military/military unit can store weapons and munitions. The evidence since DC v Heller has turned substantial into overwhelming. Multiple studies conducted using corpus linguistics has decisively refuted the idea that bear arms at the time would have meant anything other than using arms in the military (while there are isolated examples of it being used outside of a military context, they are exceptionally rare relative to the military context). Finally, “the people” can be both used to refer to the body politic, or individuals depending on the surrounding context. And even if it refers to individuals, as pointed out previously all that means is a militia is made up of individuals, and that simple fact does not automatically constitute an individual right.
And what is the surrounding context around the 2A? The first half of the 2A is purely and unmistakably about militias. The entire discussion and debate surrounding the 2A was about militia service. You would expect that just once, even out of random chance, that personal self-defense would’ve arisen in the Congressional debates. But instead, not a word. Congress had the chance to take up a directly individual right, but didn’t even give it a hearing. And even most of Moros sources are talking about a militia. A straightforward approach yields little support for his interpretation.
In contrast, Moros uses a circular approach. Moros claims that “to keep and bear arms” is “obviously” about an individual right. He then does a word search through google books for historical documents that mention “people” along with “bear arms.” Given that in Moros’ view that “to keep and bear arms” is “obviously” an individual right, these documents are seen as providing evidence to the individual rights view. Note that none of the documents actually state that “people” and “bear arms” actually means an individual right; they just have those words in them (often with a bunch of discussion about the militia). Then when pressed to provide historical evidence for the 2A being an individual right, he cites the long list of documents that have the words “people” and “bear arms,” thus closing the loop. If however the text of the 2A isn’t actually obvious, and “bear arms” does not mean what he thinks it means, his entire argument collapses on itself.
Moros’ entire argument hinges on “to keep and bear arms” clearly referring to an individual right. When one actually looks at the surrounding context and historical data of the 2A, the wording “to keep and bear arms” becomes at the very least neutral with respect to collective vs individual and dependent on context (and that’s being quite generous). That context in the majority of Moros’ cited documents leaves no potential for an individual rights interpretation, and instead strongly supports the collective view. In other words, the moment you poke Moros’ evidentiary circle, the entire argument collapses.
Moros unintentionally gives up the game when talking about “for common defense” being rejected by Congress, and how that phrase would be needed in the 2A to signal a collective right. For starters, the phrase “for common defense” survived longer than “in defense of themselves” or similar language. Second, given that the first half of the 2A is already about a “well regulated militia,” the additional common phrase isn’t at all necessary to signal a collective. Third, the idea that such a phrase would be necessary in the 2A, just as it was in 2 states that used it in their own versions of the 2A, ignores that the states that used “common defense” did not already have clauses talking about the militia. You need either “a well-regulated militia” or “for common defense” to signal a collective right, not both. And they would be redundant in the same sentence. Meanwhile, States that were formed after the US Constitution clearly felt that “to keep and bear arms” and “in defense of themselves” (or himself) were not redundant. If “to keep and bear arms” is “obviously” an individual right, this pattern of redundancy has no serious explanation.
Further, if the 2A actually had “in defense of himself” in the text, this would obviously and unmistakably signal an individual right, just as it does in many states. Now given that many of these same states would pass strong gun laws does not mean an individual right is incompatible with strong regulation. The incompatibility only arises with the bizarre and ahistorical reading the current SCOTUS has adopted.
If Moros’ view of “the right to keep and bear arms” is “obvious” and correct, the above pattern of state constitutions is unexplainable. So are court cases from the time such as State v Buzzard in 1842 that states the following about Moros’ interpretation:
“However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.”
Finally, the point that the federal government didn’t pass any gun laws until the 1930s is simultaneously false (given territories), and also not a particularly substantive point. There were a ton of things the federal government didn’t do before the Civil War that it does now, many of which have not been challenged on a constitutional basis. Back then the federal government didn’t have the funding, resources, or technology to institute something like a universal background check system, and that goes for a lot of laws outside of guns. If the federal government had taken an active role in formulating public safety and other legislation, but had excluded gun laws, then Moros’ might have a serious argument. But it didn’t, so he doesn’t. Government inactivity is only evidence of government inactivity on lots of things; it is not serious evidence that this happened because everyone knew it would be unconstitutional.
The incoherence of the individual rights framework extends to ideas around defending against tyranny and insurrection. This isn’t helped by the fact that “the founders” were completely wrong about the benefits of militias and the threat of a standing army. Every free, democratic society has a standing army (barring a couple of really small countries). An armed population has no relationship with how free a society is as multiple countries with far stricter gun laws and lower gun ownership are consistently rated more free than the United States. But even moving past “The Founders” being objectively wrong about this (as history has demonstrated over and over again), their view on how to fight against tyranny was collective focused. An individual right to insurrection and tyranny makes no logical sense.
A collective right to insurrection is Revolution. An individual “right” to insurrection is Timothy McVeigh. Confusing the two has deadly real-world consequences.
Finally, a note about “The Founders” and the originalist project in general. Any sentence that begins with some form of “The Founders believe…” is at best lazy shorthand, and more likely a sign of historical illiteracy. Other than believing that the King of England could shove it, “The Founders” didn’t agree on squat. The Constitution and Bill of Rights were both massive compromises that few walked away from thrilled. The underlying narrative that the documents are some sort of holy scripture that represents pure truth and the unified voice of “The Founders” is inane. It’s a rough draft for society that has some really, really good ideas and some really, really shitty ideas. When someone speaks of what “The Founders” intended, the only appropriate response is which ones? The Federalists or Anti-Federalists? The ones from small states or large states? North or South? Slaveholding or Free? Anglophiles or Francophiles? Quakers or non-Quakers? Rich or just somewhat rich? All of them had varied views that frequently and explosively clashed. For a philosophy that purports to hold individuals in such high esteem, originalism treats the founders as a collective monolith in a way that is profoundly ahistorical.
Originalism as practiced is also deeply hypocritical. For example, one thing that is extremely obvious from documents at the time is how much most of the prominent “Founders” feared a standing army. Regardless of whether one accepts a militia or individual based view of the 2A, there is no question that a driving motivation behind the amendment is avoiding a standing army. But for all the 2A devotees out there, how many are calling for the abolition of the US military? Because if one actually cared about why the 2A was in place and the primary fears of “the Founders,” this would be priority number one (as this excellent article by Noah Shusterman points out: https://armedwithreason.substack.com/p/how-to-be-a-second-amendment-absolutist). Yet there is silence. Because in practice Moros and other originalists don’t actually care about what “the Founders” wanted or the historical accuracy of their positions. They like guns, want more guns, and will pick and choose any snippets that will support that cause while discarding or ignoring any evidence that may oppose that project.
And in the end, on an intellectual level this debate is irrelevant. If tomorrow a historical document was unearthed and verified with James Madison writing “Obviously the 2nd Amendment is a collective right, you idiots.” I’m not convinced Moros would admit he was wrong, and I can all but guarantee that he would continue liking guns and wanting more guns and weaker laws. Now, if Madison wrote “Obviously the 2nd Amendment is an individual right, you idiots'' I would immediately change my mind on the 2A. I’d be surprised and annoyed at the substantial majority of professional historians who study the issue for being incorrect, but I would change my mind. It wouldn’t change my advocacy though. Widespread under-regulated gun ownership would still represent a clear and present danger to a safe and functioning society. The fact that a firearm in the home doubles the risk of homicide and triples the risk of suicide would not change. The overwhelming empirical and statistical evidence that more guns and weaker gun laws are detrimental to public safety and vastly outweigh any protective benefits would not change.
So given that Kostas Moros has been able to look over all 3 articles in Dru Stevenson’s series, I want to provide some concluding thoughts.
Here are each of Moros’ main responses:
Part 1: https://twitter.com/MorosKostas/status/1686496760800346113
Part 2: https://twitter.com/MorosKostas/status/1686810935271542784
Part 3: https://twitter.com/MorosKostas/status/1687158935009263616
The main thing that became clear after reading Moros’ responses is that he is playing by a different set of rules than those typically used in reasonable discussions of history, law, and logic more broadly.
The central question driving this discussion is whether “… the right of the people to keep and bear arms shall not be infringed” refers to a militia-based right, an individual right based on self-defense, or both (with both being a victory of an individual right). Keep in mind that this is NOT a discussion over whether an individual right can be found in natural law or common law. There is a well understood individual right under natural and common law, and that right falls under the social contract and can be regulated by the government, though the scope and boundaries of such a right is an open and ongoing question. That is entirely different from a constitutional right that would prohibit such regulations on such an individual right, despite Moros’ consistent attempts to muddy the waters between natural, constitutional, and common law.
How Stevenson and I approach the question is straightforward: What is the historical context of those words, and what did they mean at the time? It is somewhat amusing that Moros admits that “textualism is so important,” but then only applies such an analysis to the words “well-regulated.” Ironically, this also seems to be the only time Moros acknowledges that a first half of the 2A even exists, but more on that in a bit.
As an aside, the idea that well-supplied and well-disciplined doesn’t require government restrictions/regulations (in the modern sense of the word) is just deeply unserious. You had registries of who was in the militia, you had inspections, you had drilling, you had ammo and weapon storage regulations, you had major oversight on who precisely was allowed/required to serve, you had at least attempts at standardization to ensure proper logistics. The idea that all of that happened without government interference/restrictions is bizarrely ahistorical. And yes, that mostly happened at the state level because that was what the 2A was about according to the collective/militia view, keeping the federal government from interfering with state militias.
Anyways, back to the straightforward approach. For what words meant at the time, I agree that textualism is important, and when applied to the 2A in full it annihilates Moros’ claims. While “infringe” could mean the same thing as “abridge,” there was a distinction between them in legal language. There is a lot of historical work done on this that provides massive evidence Madison was using this as legal language (particularly as he uses “abridge” elsewhere in the constitution). Moros only offers a single dictionary source for common language use, which is not remotely serious when compared with the substantial evidence professional historians have compiled (there is literally an entire book on the topic of “infringe” as Stevenson provides in his first article).
Then take “keep and bear arms.” Moros’ response here is especially weak, which to be fair really isn’t his fault given how ahistorical and badly thought through Scalia’s opinion was on the topic. There was a substantial amount of evidence at the time that bear arms was used almost exclusively in a military context, and there was no substantive reason to believe the word “keep” changed that. Apparently Moros has never heard of an arsenal, where a military/military unit can store weapons and munitions. The evidence since DC v Heller has turned substantial into overwhelming. Multiple studies conducted using corpus linguistics has decisively refuted the idea that bear arms at the time would have meant anything other than using arms in the military (while there are isolated examples of it being used outside of a military context, they are exceptionally rare relative to the military context). Finally, “the people” can be both used to refer to the body politic, or individuals depending on the surrounding context. And even if it refers to individuals, as pointed out previously all that means is a militia is made up of individuals, and that simple fact does not automatically constitute an individual right.
And what is the surrounding context around the 2A? The first half of the 2A is purely and unmistakably about militias. The entire discussion and debate surrounding the 2A was about militia service. You would expect that just once, even out of random chance, that personal self-defense would’ve arisen in the Congressional debates. But instead, not a word. Congress had the chance to take up a directly individual right, but didn’t even give it a hearing. And even most of Moros sources are talking about a militia. A straightforward approach yields little support for his interpretation.
In contrast, Moros uses a circular approach. Moros claims that “to keep and bear arms” is “obviously” about an individual right. He then does a word search through google books for historical documents that mention “people” along with “bear arms.” Given that in Moros’ view that “to keep and bear arms” is “obviously” an individual right, these documents are seen as providing evidence to the individual rights view. Note that none of the documents actually state that “people” and “bear arms” actually means an individual right; they just have those words in them (often with a bunch of discussion about the militia). Then when pressed to provide historical evidence for the 2A being an individual right, he cites the long list of documents that have the words “people” and “bear arms,” thus closing the loop. If however the text of the 2A isn’t actually obvious, and “bear arms” does not mean what he thinks it means, his entire argument collapses on itself.
Moros’ entire argument hinges on “to keep and bear arms” clearly referring to an individual right. When one actually looks at the surrounding context and historical data of the 2A, the wording “to keep and bear arms” becomes at the very least neutral with respect to collective vs individual and dependent on context (and that’s being quite generous). That context in the majority of Moros’ cited documents leaves no potential for an individual rights interpretation, and instead strongly supports the collective view. In other words, the moment you poke Moros’ evidentiary circle, the entire argument collapses.
Part 2 of response:
Moros unintentionally gives up the game when talking about “for common defense” being rejected by Congress, and how that phrase would be needed in the 2A to signal a collective right. For starters, the phrase “for common defense” survived longer than “in defense of themselves” or similar language. Second, given that the first half of the 2A is already about a “well regulated militia,” the additional common phrase isn’t at all necessary to signal a collective. Third, the idea that such a phrase would be necessary in the 2A, just as it was in 2 states that used it in their own versions of the 2A, ignores that the states that used “common defense” did not already have clauses talking about the militia. You need either “a well-regulated militia” or “for common defense” to signal a collective right, not both. And they would be redundant in the same sentence. Meanwhile, States that were formed after the US Constitution clearly felt that “to keep and bear arms” and “in defense of themselves” (or himself) were not redundant. If “to keep and bear arms” is “obviously” an individual right, this pattern of redundancy has no serious explanation.
Further, if the 2A actually had “in defense of himself” in the text, this would obviously and unmistakably signal an individual right, just as it does in many states. Now given that many of these same states would pass strong gun laws does not mean an individual right is incompatible with strong regulation. The incompatibility only arises with the bizarre and ahistorical reading the current SCOTUS has adopted.
If Moros’ view of “the right to keep and bear arms” is “obvious” and correct, the above pattern of state constitutions is unexplainable. So are court cases from the time such as State v Buzzard in 1842 that states the following about Moros’ interpretation:
“However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.”
Finally, the point that the federal government didn’t pass any gun laws until the 1930s is simultaneously false (given territories), and also not a particularly substantive point. There were a ton of things the federal government didn’t do before the Civil War that it does now, many of which have not been challenged on a constitutional basis. Back then the federal government didn’t have the funding, resources, or technology to institute something like a universal background check system, and that goes for a lot of laws outside of guns. If the federal government had taken an active role in formulating public safety and other legislation, but had excluded gun laws, then Moros’ might have a serious argument. But it didn’t, so he doesn’t. Government inactivity is only evidence of government inactivity on lots of things; it is not serious evidence that this happened because everyone knew it would be unconstitutional.
The incoherence of the individual rights framework extends to ideas around defending against tyranny and insurrection. This isn’t helped by the fact that “the founders” were completely wrong about the benefits of militias and the threat of a standing army. Every free, democratic society has a standing army (barring a couple of really small countries). An armed population has no relationship with how free a society is as multiple countries with far stricter gun laws and lower gun ownership are consistently rated more free than the United States. But even moving past “The Founders” being objectively wrong about this (as history has demonstrated over and over again), their view on how to fight against tyranny was collective focused. An individual right to insurrection and tyranny makes no logical sense.
A collective right to insurrection is Revolution. An individual “right” to insurrection is Timothy McVeigh. Confusing the two has deadly real-world consequences.
Finally, a note about “The Founders” and the originalist project in general. Any sentence that begins with some form of “The Founders believe…” is at best lazy shorthand, and more likely a sign of historical illiteracy. Other than believing that the King of England could shove it, “The Founders” didn’t agree on squat. The Constitution and Bill of Rights were both massive compromises that few walked away from thrilled. The underlying narrative that the documents are some sort of holy scripture that represents pure truth and the unified voice of “The Founders” is inane. It’s a rough draft for society that has some really, really good ideas and some really, really shitty ideas. When someone speaks of what “The Founders” intended, the only appropriate response is which ones? The Federalists or Anti-Federalists? The ones from small states or large states? North or South? Slaveholding or Free? Anglophiles or Francophiles? Quakers or non-Quakers? Rich or just somewhat rich? All of them had varied views that frequently and explosively clashed. For a philosophy that purports to hold individuals in such high esteem, originalism treats the founders as a collective monolith in a way that is profoundly ahistorical.
Originalism as practiced is also deeply hypocritical. For example, one thing that is extremely obvious from documents at the time is how much most of the prominent “Founders” feared a standing army. Regardless of whether one accepts a militia or individual based view of the 2A, there is no question that a driving motivation behind the amendment is avoiding a standing army. But for all the 2A devotees out there, how many are calling for the abolition of the US military? Because if one actually cared about why the 2A was in place and the primary fears of “the Founders,” this would be priority number one (as this excellent article by Noah Shusterman points out: https://armedwithreason.substack.com/p/how-to-be-a-second-amendment-absolutist). Yet there is silence. Because in practice Moros and other originalists don’t actually care about what “the Founders” wanted or the historical accuracy of their positions. They like guns, want more guns, and will pick and choose any snippets that will support that cause while discarding or ignoring any evidence that may oppose that project.
And in the end, on an intellectual level this debate is irrelevant. If tomorrow a historical document was unearthed and verified with James Madison writing “Obviously the 2nd Amendment is a collective right, you idiots.” I’m not convinced Moros would admit he was wrong, and I can all but guarantee that he would continue liking guns and wanting more guns and weaker laws. Now, if Madison wrote “Obviously the 2nd Amendment is an individual right, you idiots'' I would immediately change my mind on the 2A. I’d be surprised and annoyed at the substantial majority of professional historians who study the issue for being incorrect, but I would change my mind. It wouldn’t change my advocacy though. Widespread under-regulated gun ownership would still represent a clear and present danger to a safe and functioning society. The fact that a firearm in the home doubles the risk of homicide and triples the risk of suicide would not change. The overwhelming empirical and statistical evidence that more guns and weaker gun laws are detrimental to public safety and vastly outweigh any protective benefits would not change.