Historic 2nd Amendment Decision

The Supreme Court today handed down a hotly anticipated ruling on the District of Columbia's restrictive gun laws, and it is of great historical significance because of the way they interpreted the 2nd Amendment.

The 2nd Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The curious wording of this amendment, wholly unlike any other in that it begins by stating the purpose of the amendment (much in the manner of a resolution: whereas....therefore...), has long caused debate about the relevance of the purposive language. Was the textual right to keep and bear arms restricted by the attendant language about a militia? Or, generally speaking, was this more of an absolute personal right or a limited collective right?

Conservatives, being more favorable toward gun ownership, favored the individual right interpretation, while liberals favored the more restrictive interpretation whose actual meaning was unclear, except that it meant states could limit gun ownership.

Although I was, at one time, in favor of gun control laws, as I studied constitutional law in grad school, I became more and more convinced of the individual rights interpretation. The language about militias is clearly explanatory, rather than regulatory. Regulatory language, as I am very loosely using the term, is such as is found in conjunction with the right of habeus corpus:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Clearly the writ is an individual right, yet it can be restricted, in the specified circumstances. But the language about militias in the 2nd Amendment bears no resemblance to the language here. (Why the 2nd Amendment, alone of all the amendments, has a sort of preamble, is a bit of a mystery. Presumably it's nearly purely a historical accident. The original phrasing, as propopsed by Madison was nearly the same, although the clauses were transposed (and the final clause was excised).

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Of the other amendments he proposed, in just one other he also had this kind of language:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

So apparently Madison felt the need, on just two occasions, to make such emphasis about the purposes of the rights, and Congress, for whatever reason, chose to eliminate it in just one case. There may be an argument for it found in the Congressional Record of the debates, but while I did, at one time, peruse the record of those debates, I did not see any such arguments.

In recent years, even liberal scholars of the 2nd Amendment have begun to conclude that a proper historical analysis and interpretation leads to the conclusion that the words are not restrictive, and that the right to keep and bear arms is an individual right. And the argument that the Amendment refers to a state's right to keep a militia (as, for example, found in the 6th Circuit's Stevens v. U.S., United States Court of Appeals, Sixth Circuit, 1971) cannot be taken seriously, as the Amendment makes no reference at all to the states. The 10th Amendment does mention the states, so by normal standards of constitutional interpretation, the exclusion of such mention elsewhere would mean the authors intended to exclude their mention in the 2nd Amendment.

So, whether one likes it or not, it seems clear that the 2nd Amendment right was intended as an individual right. And I am of the opinion that if you dislike an constitutional amendment the only legitimate response is to try to amend it, rather than to try to legislate or interpret it away, because the implications of the latter approaches for constitutionalism are simply unacceptable. If we can simply interpret away irritating aspects of the Consitution, or wholly ignore them as we write our legislation, then there are no longer any real constitutional constraints on government, only those that don't yet have a majority opposed to them.

But the Supreme Court hasn't ruled directly on the 2nd Amendment since U.S. v. Miller (1939). In that case, the Court did adopt the position that the militia language is restrictive of the right:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Unfortunately, Justices Stevens and Breyer stick to the old, "it's a militia right, not an individual right" claim. However I have never been impressed with the scholarship of either of them. Stevens tends to be confused and unclear in his arguments, while Breyer simply has the horribly misguided idea that the Constitution was designed to create a "democratic debate." I have read his book, Active Liberty, and saw in it an interpretive method--the focus on the democratic debate--that could (a) be used to reach any conclusion he liked in any particular case, and (b) which discounted the idea of constraints on government as long as the majority approved of the government action. Anyone who thinks a simple majority should trump a constitutional constraint has no business on the Court, and the liberals who support him should shudder at the thought that a conservative might use the same approach.

Here are some excerpts from Scalia's opinion for the majority:

But apart from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause (cites follow)...

The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology...All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body...

Putting all these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank..."[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence...

The phrase "security of a free state," meant "security of a free policy," not security of each of the several states as the dissent [argues]...

There is, of course, much more, and although I haven't yet read it closely, I'd say Scalia has made a strong case for the individual rights interpretation.

Ultimately, I find that Stevens and Breyer make the mistake that Scalia himself too often makes--looking for plausible arguments to support government action and restrict the scope of the Bill of Rights. My own overriding belief is that while no right is absolutely unlimited, we ought to begin with the assumption that the Bill of Rights seeks to maximize the rights of individuals against the government, and, as it is a government of the people, that means maximizing the individual's right against a hostile majority. While Breyer rests his faith in majoritarian politics, I side with Madison, who clearly understood--even before the terror of the French Revolution--how tyrannical a majority could be.

But Breyer makes an additional mistake, using a policy analysis to support his legal argument:

The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

First, it is true that the decision will throw into doubt the constitutionality of existing gun laws. So what Breyer implies is, if there are a whole lot of laws that are unconstitutional, let's stay out of it because it will be troublesome to agree with. Imagine this line of reasoning as applied in Brown v. Board of Education: "This decision threatens to throw into doubt the constiutionality of Jim Crow laws throughout the United States." Yeah, so the Court should just stay out of it?

Second, to the extent he would allow an individual right to gun ownership, he would limit it only to certain places, but not cities. Imagine this line of reasoning in National Socialist Party of America v. Village of Skokie: "In my view there is simply no untouchable constitutional right guaranteed by the First Amendment to shout Nazi slogans in heavily Jewish urban areas." Breyer's reasoning just doesn't extend to a general approach to constitutional interpretation--he only can rely on it because doesn't want there to be such a right. To pretend that "the right of the people" has a substantively distinct meaning in this, and only this, spot in the Constitution is a fundamental dishonesty.

What Breyer's argument boils down to, once again, is that he would let a majority vote decide our constitutional rights. Where are the most restrictive gun laws in general? In cities. Where does he believe the right shouldn't apply? In cities. The clear implication is that the only places we should have a right to keep and bear arms is where the majority supports the right, and where the majority doesn't support the right, we shouldn't have it.

As anyone who knows me well knows, I'm not a big fan of Scalia. I think he often uses is alleged originalism in a very dishonest manner. But in this case, although he makes a long historical argument, his essential argument is a textual one--analyzing the text itself in comparison to its complentary texts elsewhere in the Constituiton--and using well-established standards of interpretation.

The decision is correct, and gun opponents--who I agree have good reasons to dislike guns--need to think hard about what kind of precedent it would set to simply wish away a right listd in the Bill of Rights. Even if it is not their favorite right, do we want to start down that road?