More on the Marriage Equality Cases

Sorry, I just can't help myself from commenting on the law, and I can't help myself from bashing Justice Scalia, so I figured I'd share. 

One Q&A that received some amount of attention this week was this exchange between Justice Scalia and Ted Olson:

JUSTICE SCALIA: I’m curious, ... when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? ...  

MR. OLSON: [M]ay I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools? 

JUSTICE SCALIA: It’s an easy question, I think, for that one. At ... the time that the Equal Protection Clause was adopted [in 1868]. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . . 

MR. OLSON: It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that—

JUSTICE SCALIA: I see. When did that happen? When did that happen?  

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

This whole exchange is somewhat farcical. Obviously, Justice Scalia's position is that the Constitution never changes unless it is explicitly amended. So, segregation was unconstitutional in 1868, but we were just too stupid/ignorant/bigoted to realize it until 1954. This in general is a pretty silly way of looking at constitutional rights. First, what does it mean that certain civil liberties are "constitutional rights" except for the fact that the Supreme Court has recognized them as such? It's a metaphysical question, at best. Second, it seems pretty intuitive (to me, at least) that as culture, society, and technology changes, the content of constitutional rights can change as well.

But, I think the absurdity of Justice Scalia's line of questioning is really shown by the 1954 case Bolling v. Sharpe. Bolling was decided on the same day as Brown v. Board of Education, and it said that it was unconstitutional for the District of Columbia to have segregated schools. However, it is not obvious that Bolling follows directly from Brown.

To understand why this is a difficult question, consider the text of the Fourteenth Amendment: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." So, Kansas can't segregate its schools, but Washington, DC isn't a state, so the 14th Amendment doesn't apply. However, the Supreme Court figured out a work-around. Relying on the controversial doctrine of substantive due process, the Court held that the 5th Amendment's right to "due process of law" by the federal government effectively guarantees equal protection of the laws.

In reality, Justice Scalia can't defend Bolling, because he doesn't believe in substantive due process. So, in a logical world, Justice Scalia would be forced to say that the federal government can discriminate against minorities all it wants. But, if we assume that Justice Scalia has broken his own rules and come to terms with the fact that Bolling is good law, then he would have to say that it has actually been unconstitutional for the federal government to have segregated schools since 1791. In fact, for 74 years, the federal government could constitutionally enforce slavery but not school segregation.

Huh?

The Marriage Equality Cases

Updated: 3/29/13

To be perfectly honest, I haven't read or watched most of the commentary around this week's arguments in Hollingsworth v. Perry (the Prop 8 case) or US v. Windsor (the DOMA case). I find that prognostication based on oral argument is pretty pointless. The Justices, going into this week's arguments, have read hundreds upon hundreds of pages of briefing materials about the cases. Oral argument, by its very nature, frequently addresses the more obscure issues that haven't received the bulk of the briefing. And, oral argument at the Supreme Court has become more and more about grandstanding by the Justices (see, e.g., Scalia, Antonin).

That being said, here's the basic run-down of what you need to know, as we wait three months for the decisions.

1. Standing: The Court could, in theory, refuse to decide either case. Like so many controversial cases, both Perry and Windsor have questions of standing—whether there's a real "case or controversy" that gives the Court jurisdiction. In Perry, the State of California declined to defend Prop 8, allowing the official proponents of the law to take the defense in the case. The question is whether the proponents of Prop 8, having lost, have the right to appeal the decision. After all, they didn't lose; it was theoretically the State that lost. Similarly, in Windsor, the Obama administration declined to defend DOMA. The defense has been led instead by the Bipartisan Legal Advisory Group (really, the House Republicans). In both cases, if the Court finds no standing, the plaintiff wins—Prop 8 falls and Edith Windsor gets her tax refund—but the cases have no precedential value.

(In Windsor, things actually get weird if there's no standing. Since there would be no valid appellate court ruling on DOMA, the law would stand, but Windsor as an individual would nonetheless get her tax refund. Individual plaintiffs would have to keep suing until somebody loses, at which point that losing plaintiff would have standing to appeal.)

2. Level of Scrutiny: Laws that discriminate against a particular group must meet one of the following three tests:

• Strict Scrutiny: The law must be narrowly tailored to serve a compelling government interest.
• Intermediate Scrutiny The law must significantly further an important government interest.
• Rational Basis Review: The law must be rationally related to a legitimate government interest.

Which test is used depends on the characteristic that is being subject to discrimination. "Suspect" characteristics—race, religion, and national origin—get strict scrutiny. Quasi-suspect characteristics—primarily gender—get intermediate scrutiny. Everything else gets rational basis review.

The Supreme Court has never said which category sexual orientation falls into. Based on the factors used by the Court in the past, sexual orientation must be at least quasi-suspect, and probably a suspect class. But the Court has always avoided making a definitive ruling on this question. If the Court finds that the laws fail all three tests, then they can keep avoiding the question. But if the laws are at least rational and legitimate, then they have to make a decision.

3. Equal Protection Analysis: Once the level of scrutiny is determined, the core question is how much "bite" the relevant test has. For example, Judge Walker, in Perry, found that Prop 8 was an irrational means to an illegitimate end, and would thus fail even under rational basis review. If the Court applies either intermediate or strict scrutiny, it will be almost impossible to uphold either law. If it applies rational basis review, the question is really whether Justice Kennedy (or perhaps Chief Justice Roberts) will nonetheless vote to strike them down as irrational.

4. Romer v. Evans: The Ninth Circuit's ruling in Perry managed to strike down Prop 8 while purporting not to affect laws in any other states. It did this by relying on the 1996 case Romer v. Evans, which struck down a Colorado ballot initiative that made it unconstitutional to enact legal protections for gay individuals. The Court ruled in Romer that the ballot initiative could not have had any basis other than irrational prejudice, and it therefore was unconstitutional. Similarly, the Ninth Circuit held in Perry that "Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents." Taking away "marriage" while leaving in place all of the rights of civil unions could not have been motivated by nothing other than irrational prejudice.

However, the Ninth Circuit's ruling proves too much. If there can be no rational reason to take away "marriage" from same-sex couples while leaving civil unions in place, how can there be any rational reason to give same-sex couples all of the rights of marriage except the name? Even if there were valid, legitimate reasons to restrict marriage rights to heterosexual couples, once you give those rights to same-sex couples, you have admitted that there's no reason not to give them the title "marriage" as well. This leads us to...

4. The "Eight-State Solution": The United States has actually argued for an interesting middle-ground resolution in Perry, which commentators are calling the "eight-state solution." Even if sexual orientation is not a suspect class, and even if discriminating against same-sex couples can be rationally defended, then it is nonetheless irrational to give them all the rights of married couples and not the title "marriage."  It's pretty much the definition of "separate but equal." Accordingly, the eight states that have full civil union laws—California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—could not ban same-sex marriage. None of the Justices appeared to bite down too hard on this argument at oral argument, but it remains the most plausible way to strike down Prop 8 while not affecting the laws of the 32 states than same-sex marriage.

5. States' Rights: One of the weird arguments to pop up this week was whether definition of marriage is, in effect, a state right. Justice Kennedy in particular seemed to be arguing that states alone have always had the power to define, grant, and dissolve marriage. Thus, Californians can legitimately restrict the institution to male-female couples (i.e. Prop 8 stands), but the Federal Government must accept whatever definitions the states use (i.e. DOMA falls). If your state considers you "married," you should be able to file a joint federal tax return.

Normally, I would consider this to be a highly unlikely scenario. The Supreme Court rejected once and for all the idea that states have any "traditional" functions immune from federal intrusion almost 30 years ago. (Yes, it was that recent.) I would be shocked if they walked back on that jurisprudence now. But, we are living in strange times. In June, the Supreme Court stated that the ACA's individual mandate was not a valid exercise of Congress's commerce power, and it held that the ACA's Medicaid expansion was unduly coercive on the states. Neither of these positions was supported by any rational reading of the existing case law. But, one of the perks of being on the Supreme Court is that you can do pretty much whatever you want.

So, we'll find out in June.

Keynes v. Hayek

The Babysitting Co-op

The best way to understand modern macroeconomics is through Paul Krugman’s parable of the babysitting co-op. The parable—based on the true story of the Capitol Hill Babysitting Co-op—involves a group of couples who agree to babysit for each other. In order to equally distribute the labor, each couple was given 14 coupons, each good for one hour of babysitting.

The problem, as Krugman tells the story, occurred when winter rolled around. Couples wanted to stay indoors in winter and save up their coupons for the summer months. Despite couples being willing and able to babysit, there was simply no demand for babysitting. Nobody went out, and nobody babysat. “In short,” Krugman writes, “the co-op had fallen into a recession.”

“Classical” economics presents an easy solution to the recession: high supply and low demand means that the price of babysitting should fall. Instead of getting one coupon for an hour of babysitting, babysitters should be willing to accept half of a coupon. Wages should fall until supply meets demand. When summer comes, higher demand will push the price back up; the system self-regulates.

For a variety of reasons, however, classical economics doesn’t actually work as an empirical matter. As John Maynard Keynes recognized, wages are “sticky”; they don’t fall like they should. This could be because companies are hesitant to reduce their employees’ salaries, unions prevent wages from being renegotiated downwards, or companies are afraid that lowering wages will cause their best employees to be poached by other firms. Employees will fight hard against wage decreases because most people live their lives locked into nominal-dollar contracts. My landlord won’t care that my wages have fallen when he comes looking for rent, the bank that gave me an auto loan won’t care that my income is lower—ditto for my cable company and my cell phone provider. If a company has ten employees, each employee would much rather the company lay off one person at random than give everyone a 10% pay cut. So, sticky wages prevent supply and demand from fixing the unemployment problem; this may even be for the best, to avoid the necessity of wholesale renegotiation of contracts every time the economy slows down. 

Keynesians have an easy alternative solution: print more coupons. If people want to hoard coupons, the “central bank” should just give them more coupons, so they’ll be more willing to part with a few of them. An injection of new coupons into the system will get everybody willing to spend a few more nights babysitting during the winter months. And, when summer rolls around, if there is too much demand (i.e., so many coupons that everybody wants to go out on the same night, leaving nobody left to babysit), then the central bank will just shred a few of everyone’s coupons.

The Austrian economist is shocked at the Keynesian solution. The market didn’t want more babysitters. Why on earth should a central authority cause people to babysit when the market clearly doesn’t want it? After all, this is all well and good when we’re talking about babysitting, but what if we’re talking about houses? Say (hypothetically speaking) there was a surplus of houses on the market, causing an economic slowdown. Isn’t lowering interest rates (or printing money, which is the same thing) just going to further inflate and already inflated housing bubble? Aren't we just pushing off the Day of Reckoning, when the bubble bursts, thereby making the inevitable burst that much worse?

The Keynesian doesn’t see the problem. What’s the problem with the central bank keeping the babysitting economy “artificially” afloat? With adequate financial stewardship, why does the bubble necessarily need to burst? True, in the long run, the market may always trend towards equilibrium, but, as Keynes famously remarked, “in the long run, we are all dead.” What good is it to know that summer is coming if you can’t feed your family during the winter?

What is a Recession?

Austrian economists, however, think that the Keynesian picture misinterprets what's going on with the babysitting co-op. Keynes sees recessions as shortfalls of aggregate demand for goods and services. If so, this means that there is a surplus of the supply of goods and services. But this doesn’t make sense. Society isn’t poorer. There are the same number of people willing and able to work the same number of hours. If people want to stay inside during the winter, then the market will reward entrepreneurs who provide indoor services. The ex-babysitters should be willing to accept a coupon for an hour of, say, cooking a meal for another family. The market will lead people into higher-demand industries, people will get paid for their labor, and supply and demand will meet. Demand failures are structural, not aggregate. Left to its own devices, the market will never let aggregate supply and demand stray far from each other.

Unfortunately, this picture is wrong both theoretically and empirically. Empirically, if unemployment is structural, people with high-demand skills should prosper during a recession, and we don’t see this. Since 2008, every industry has suffered, and it's not clear what sort of "restructuring" could occur to fix things. And as a matter of theory, it seems that Austrians are looking at the world backwards. Austrians look at the recession and conclude that people are hoarding money because they don’t want babysitters. However, the truth is actually the converse: people don’t want babysitters because they want to hoard money! People today are so nervous about the future that, in a cashless society (where people couldn't stuff money into their mattresses), people would accept negative interest on their bank accounts rather than buy things. This sort of behavior simply isn't accounted for in the Austrian view of the world. 

A recession, in the Keynesian view, is a classic coordination game; everybody would be better off if everyone started moving at the same time, but resources lie idle because everybody’s waiting for somebody to tell them when to start. And that somebody is the government.

The Austrian still doesn’t accept the Keynesian picture. The huge mismatch of supply and demand we’re seeing now was created by years and years of government meddling with the economy. If we have what looks like a long-term failure of aggregate demand, it is only because the government has so perverted the structure of the economy that the market will take a long time to re-equilibrate. If there is a disequilibrium in the market, the market will fix it better than the government can. The government does not—indeed, cannot—know what the best solution is, and trying to fix the problem is likely only to make it worse.

This is the key to understanding the Austrian view of the world. There is a natural business cycle, but the cycle is exacerbated by government intervention. By trying to dig us out of recessions, the government creates bubbles in sectors that wouldn't otherwise occur, sowing the seeds of the next recession. When it tries to contain economic booms, the government straps bricks to our feet for when the inevitable rebalancing occurs. The inability of a central planner to know what the market wants makes any attempt to manage the economy counterproductive.

Gold!

So, the Austrian approach requires the government to be completely hands-off. The government should not create artificially loose credit (i.e. print money) in order to spur the economy, nor should it create artificially tight credit (i.e. destroy money) in or to slow down the economy. Indeed, in the ideal Austrian world, the government should be constrained to a fixed amount of currency that it may put in circulation.

Which brings us to gold.

The gold standard, as I understand it, is a means to an end. The point is not that money necessarily must be tied to something tangible, but that when a government can print notes that represent money, it must be tied to the mast so as to be able to resist the temptation to manipulate the economy through the supply of notes.

A complaint one often hears from Austrians is that the US is “debasing” the dollar with programs such as quantitative easing. However, it’s not really clear what that means. There has not been any substantial inflation since 2008, and, if anything, the dollar is stronger against other currencies than it was in 2008. So, what’s the problem with quantitative easing?

As far as I can tell, the answer is that the Day of Reckoning is always right around the corner. All it’s going to take is one more financial crisis—one more crisis induced, Austrians would say, by artificially easy credit—before the entire “fiat money” system collapses and people flee to “sound money” such as gold. Thus, every time the government creates money, it is further impoverishing the citizens whose bank accounts will buy less and less gold when the Day of Reckoning comes.

Wall Street Hoarders

But monetary policy is only one of the levers that government can use to manipulate the economy. What about fiscal policy? When the economy is slow and monetary policy can’t pick up the slack, the modern view is that government should borrow money and spend it in ways that stimulate the economy.

Opposition to fiscal stimulus is where I get genuinely confused. If you read blog posts by Cato, or by the economists that Paul Krugman attacks, you frequently see the same argument: expansionary fiscal policy doesn’t make sense, because every dollar that the government borrows from financial institutions is a dollar that could have been invested—more efficiency—in the private market.

The problem is, in a liquidity trap such as the Great Recession, this is patently false. 

Backing up for a minute—prior to the 2008 economic crisis, the US money supply (M2—roughly the amount of money people had in their bank accounts) was about $8 trillion. Banks kept only the minimal legal reserve on their balance sheets, which gave us a monetary base of about $800 billion (a 10:1 M2/MB ratio). In the years since financial insanity struck, the Fed's quantitative easy has more-than-tripled the monetary base, to $2.7 trillion. In the same time, M2 has increased to about $10.4 trillion, giving us a roughly 4:1 M2/MB ratio. Why has the ratio decreased so much? Because banks have $1.5 trillion in excess reserves at the Federal Reserve. Banks have simply hoarded most of the extra money created by the Fed, without lending it out. This makes very little sense; that $1.5 trillion is sitting in accounts at Federal Reserve banks, which earn only 0.25% interest—a rate that could probably be beat out on the market. This hoarding is irrational and fear-drive, and is one of the big unexplained stories of the financial crisis. And it goes a long way to explaining why U.S. monetary policy since 2008 has not been as effective as the Fed hoped.

So, with $1.5 trillion in excess reserves, U.S. financial institutions could plug the entire projected 2013 deficit by buying $900 billion of Treasury Bonds—which earn up to 3.17% interest—and still have $600 billion left to lend to private institutions. Government borrowing is not "crowding out" any private investment. If banks are not investing in private enterprises, it is only because they do not want to.

It’s All About the Benjamins

So, leaving aside the incorrect "crowding out" argument, why don't Austrians like fiscal stimulus? There are several reasons. First, Austrians are naturally allied with Libertarians with respect to the size of government, and less deficit spending means a smaller government. Second, the Austrian argument against stimulus is his constant refrain against malinvestment. To the extent that poor central planning exacerbates the ups and downs of the business cycle, deficit spending is bad for economic health. 

Finally, Austrians hate deficit spending because, at its core, fiscal stimulus is the same thing as monetary stimulus. If I deposit $1,000 in a bank and the bank lends all of that money to the federal government, M2 doubles. The bank's act of lending causes there to be more money in the world. So, whether the Federal Reserve creates extra money or banks lend it out, the money supply increases, and with it the distortion of the market. 

Indeed, the fact that extending credit “creates” money provides yet another reason why Austrians dislike the Fed. Banks can afford to lend out 90% of their deposits because there’s no real danger of a run on the bank. If the bank has a temporary blip where people demand more deposits than are in the bank, the Fed can always act as a lender of last resort to prop up the bank. Thus, the existence of the Fed means that banks extend credit more easily and on riskier loans, once again distorting the market.

Everything you need to know about the "Platinum Coin" loophole

Although it might be a moot point now because the Treasury department has apparently ruled it out, the "platinum coin" solution to the debt ceiling standoff is an interesting loophole in the treasury laws.

One of the many ways that the U.S. is not like a person is that the U.S., like any government with its own currency, can always just print money to pay its bills. After all, why borrow when you can just generate it out of thin air? Obviously, Weimar Germany and Zimbabwe might have an answer to that, but in our case, macroeconomists I trust (such as Paul Krugman) are pretty sure that printing money in our current economy won't lead to hyperinflation. This is particularly true if we destroy all of the extra money once the debt ceiling is raised.

However, there are limits on the government's ability to print or mint money. This limits are in part legal limits and in part practical limits.

Printing pallets of $100 bills doesn't work, for two reasons. First, Federal Reserve Notes are effectively promissory notes issued by the Fed in exchange for loaned funds. (The Fed actually has to have real collateral—usually Treasury bonds—to back up every note in circulation.) So, even if the Fed could just print $1T in currency, the U.S. Treasury would have to purchase them with a trillion dollars of cash on hand. And if the US had $1T in cash on hand, there wouldn't be a debt ceiling problem. The second problem is that Federal Reserve Notes are actually considered debt instruments. Federal Reserve Notes are "obligations of the United States," and they thus count against the debt ceiling's limitation on "obligations whose principal and interest are guaranteed by the United States Government." So, even if the Fed gave away $100 bills to the US Treasury for free, it would actually be putting more U.S. debt out into the world, which is not allowed.

Minting coins is also problematic. Federal law is very specific about what denominations of coins can be minted in each type of metal. And this creates limits on the seigniorage that the government can make on coins. For example, because copper and zinc are so expensive, to mint $1 trillion in pennies, the US would have to buy about $2 trillion in copper and zinc. (The law requires that pennies be made of copper and zinc.) And, again, if the US had $2 trillion in cash on hand right now, then we wouldn't have a debt ceiling problem. Currently, the law does not allow for any denominations where the US could actually afford the metal it takes to mint the coins. 

With one exception. The subsection on platinum coins says that the Secretary of the Treasury may mint platinum coins with "such specifications, ... quantities, [and] denominations ... as the Secretary, in the Secretary's discretion, may prescribe." The purpose of this provision was to make commemorative coins, but nothing in the law says that. And given the textualist bent of the Federal Courts in the modern era, a court would probably find that there are no limits on the permitted denominations of platinum coins. So, the Secretary can just buy 1 oz. worth of platinum, stamp "$1 trillion" on it, and instantly will $1 trillion into existence. It can then deposit them in the federal government's account at the federal reserve, and then write checks on that account. (Full disclosure: I've always had problems with strict textualism, precisely because of absurdities like this one. If I was a judge, I would probably have some reservations about this interpretation.)

There's actually an interesting constitutional question about this. There's this principle in constitutional law called the "non-delegation" doctrine. Congress can't give unlimited power to the President by passing law that effectively says, "The president can do whatever he wants." This doctrine was one of the many ways that the Supreme Court struck down New Deal programs in the 1930s.

Since the New Deal, however, this doctrine has never been invoked. The Supreme Court has ruled that Congress can delegate most law-making to the executive branch, as long as there's some intelligible principle, policy goal, or guideline behind a law. So, a ruling striking down the platinum coin law on non-delegation grounds is highly unlikely. On the other hand, saying to the Treasury Secretary, "Mint as much money as you want," is a pretty extreme delegation of power. The Constitution gives Congress the power to mint coins, and it's not clear that Congress can let the Treasury Secretary do whatever he wants.

However, this is all probably an academic point, because nobody can challenge the president if he mints the Coin. To have standing to challenge a government action, you must have suffered an individualized injury. In general, taxpayers do not have standing to challenge general fiscal laws that do not target a specific group. That, in theory, are what elections are for. Members of Congress, in order to sue, need to be "injured" like any other Plaintiff. The Supreme Court generally doesn't like wading into political battles, so when a member of Congress sues the president, it uses an "especially rigorous" inquiry that effectively asks whether the President has effectively "nullified" an Act of Congress. If the treasury mints a platinum coin, no laws have been broken or ignored. So, if the president does instruct the Treasury Secretary to mint a platinum coin, it may be "by definition" legal, in the realist sense that nobody has legal standing to challenge it.

UPDATE: Matt Yglesias gives this fitting eulogy to #MintTheCoin:

I'm glad we had this conversation. Direct discussion of the platinum coin was a good reminder that many people, including influential media figures, appear to have no idea what money is or how the monetary system works. Apart from the shockingly widespread view that the value of coins is determined by their metallic content, there was a lot of insistence that creating money was somehow an act of "magic." In fact, the way all legal currency is created is that a government agency creates the money. ... When the Fed does the thing that reporters call "lower[ing] interest rates" they buy bonds on the open market in exchange for money. Where do they get the money? From nowhere. They just make it. That's money. Whether the electronic process of attributing more or less money to an account is accompanied by a little piece of platinum or not is wholly irrelevant.

Musings on the Second Amendment

I have a lot of trouble in grappling intellectually with the 2nd Amendment. I tend to read rights expansively. And I believe that the 9th Amendment commands us to read rights expansively. I'm willing to read the word "abortion" into the 9th, 13th, and 14th amendments, so I can't really blame people for wanting to read the 2nd amendment broadly. Is my opposition to "gun rights" anything more than my personal preferences masquerading as constitutional law?

Read broadly, the point of the 2nd Amendment is to make sure that Americans will always be able to throw off the yoke of a tyrannical government the way a bunch of farmers threw off the yoke of the British Empire. But, of course, that's impossible today. If the federal government became a despotism, even popular ownership of assault rifles wouldn't stand up to the US Army. But is that a reason to ignore the 2nd Amendment? Can a right be ignored just because it's impractical or irrelevant? If we can't get the supermajority necessary to remove it from the Constitution, shouldn't we continue to enforce it?

The most obvious response to these questions is the prefatory clause. If the federal government ever did become a despotism, the founders envisioned that the people would be protected by the state National Guards (i.e. "the militia"). The state Guards were envisioned as the real military power in the United States. Congress has the power "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." However, the state militias—while technically subject to federalization—would presumably remain loyal to their states. This is why the militia clauses of the Constitution have an important caveat: they "reserv[e] to the States respectively, the Appointment of the Officers, and the Authority of training the Militia." So, the Constitution envisions a well-trained fighting force, but it ensures that that fighting force can remain loyal to the states. And, in the Second Amendment, it ensures that the federal government cannot disband it.

(Although the Constitution does allow for federal armed forces, it makes them the exception and not the rule. Congress can "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Two years is important here; it means that for there to be a standing army, every Congress will have to vote to reauthorize it, and the founders envisioned this as being a very unpopular vote.)

Of course, the "well-regulated militia" answer has one flaw. The whole point of the 14th Amendment is that the states—presumed in 1791 to be bastions of liberty and freedom—can actually be even more tyrannical than the federal government. The 14th Amendment was designed to protect against state tyranny. So, shouldn't people be allowed to carry their own guns, to protect against state tyranny? Well, not really. The Constitution makes it the responsibility of the federal government to "guarantee to every State in this Union a Republican Form of Government." When a state is being tyrannical, I have faith in the federal government to sort things out.

So, it's a nicely closed circle. The US Army protects against state tyranny, and the state National Guards protect against federal tyranny. Individual gun-ownership need not enter the picture.