PURSUE | JUSTICE | VOTE | PEACE | DEFEND | RIGHTS | LEARN | LAW
"For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."
"Were the Second Amendment a mere federalism ("State's rights") provision, as it is not, it would assuredly appear in a place appropriate to that purpose (i.e., not in the same list with First through Eighth Amendments, but nearby the Tenth Amendment) and it would doubtless reflect the same federalism style as the Tenth.... Instead, it is cast in terms that track the provisions of the neighboring personal rights guarantees of the Bill of Rights....
[With regard to judicial cases] "To trust to this arrested development of the second amendment--and of the fourteenth amendment--in 1994, in short, is as though one were inclined so to trust to the arrested development of the First Amendment in 1904. No convincing jurisprudence is itself really possible under such circumstances. In the case of the first amendment, we know quite well that such a jurisprudence only became possible quite late, in the 1920s (but, one may add, better late than never). In the case of the second amendment, that jurisprudence is even now not possible until something more in the caselaw of the second amendment begins to fall into place. That 'something more,' I think, requires one to consider what one might be more willing to think about in the following way--that perhaps the NRA is not wrong, after all, in its general second amendment stance--a stance we turn here briefly to review.
".... Nor is there any basis to try to read the second amendment as though it said anything like the following: 'Congress may forbid the people to keep and bear arms if, notwithstanding that the restrictions it may enact are inconsistent with the right of the people to keep and bear arms, they are not inconsistent with the right of each state to maintain some kind of militia as it may deem necessary to its security as a free state.' Rather, the second amendment adheres to the guarantee of the right of the people to keep and bear arms as the predicate for the other provision to which it speaks, i.e., the provision respecting the militia .... Specifically, it speaks to an ultimate reliance on the common citizen who has a right to keep and bear arms, rather than to some other politically separated, defined, and detached armed cadre, as essential to a free state. In relating these two propositions within one amendment, moreover, it does not disparage, much less subordinate, 'the right of the people to keep and bear arms.' To the contrary, it embraces that right and indeed erects the very scaffolding of a free state upon *that* guarantee. It derives its definition of a well regulated militia in just this way for a 'free state': the militia to be well-regulated is a militia to be drawn from just such people (i.e., people with a right to keep and bear arms).
"There is, to be sure, in the second amendment an express reference to the security of a "free" state. It is not a reference to the security of "the state." There are doubtless certain national constitutions that put a privileged emphasis on the security of "the state," but such as they are, they are unlike our constitution.... Accordingly, such constitutions make no reference to any right of the people to keep and bear arms."
"The argument that today's National Guardsmen, members of a select militia, would constitute the only 'persons entitled to keep and bear arms' has no historical foundation."
"...'the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const. Amdt. I ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble") .... While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, refers to a class of persons who are part of a national community...."
"The states' rights reading puts great weight on the word 'militia,' but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to 'the people' not the 'states.' As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means 'states' it says so. Thus, as noted above, 'the people' at the core of the Second Amendment are the same 'people' at the heart of the Preamble and the First Amendment, namely citizens."
"Normal constitutional argument begins with the text.... There seem to be two main theories of the Second Amendment. ... But in places where close attention is paid to what the words actually say, the states-rights reading of the Second Amendment has attracted surprisingly little support. After all, the Second Amendment does not say 'A well regulated militia, being necessary to a free state, shall not be infringed.' Nor do the words of the amendment assert that the 'right of the people to keep and bear arms' is conditional upon membership in some sort of organized soldiery like the National Guard. Indeed, if there is conditional language in the Second Amendment at all, it runs the other way: Because the people have a right to keep and bear arms, states will be assured of the well regulated militias that are necessary for their security. Some version of this reading is supported by almost all of the constitutional historians and lawyers who have published research on the subject. Indeed, this view is so dominant in the academy that Gary Wills, the lone dissenter among historians, has dubbed it the 'Standard Model' of the Second Amendment."
"If states possess a constitutional right, as against the federal government, to maintain militias, then the second amendment works a pro tanto repeal of many of the restrictions on state military power contained in Article I, sec. 10 of the Constitution.... The Congressional power to supervise the arming and training of the militia, contained in Article I, sec. 10, clause 16 would have to be viewed as modified by the second amendment if we are to give the states' rights interpretation meaning."
"One might try to avoid this problem by simply declaring that the National Guard is the 'militia' that the states have a right to maintain, but this argument has two problems. First, for reasons set out above, it is obviously not true. After all, an institution that is to serve as a counterweight to the federal standing army can hardly fulfill that function if it is as thoroughly dominated by the federal government as is the present National Guard. Whatever the Guard is, it is not a 'state army.' Rather, it is a federally funded and controlled force with a (very) thin facade of state control. The Supreme Court so reasoned in Perpich [where] the Court concluded that Congress' powers to raise armies and make war, rather than its militia powers, were implicated. ....."
"Moreover, the states' rights theory is based on a discredited (and always unsound) notion of relationships within our federal system. Under the classical view of the constitution, authority is delegated by the people to two kinds of governments, state and federal. State government are not creatures of the federal government, nor the federal government the creature of the states. But there is another view, in which state governments represent the real governments of the people. The federal government exists as a somewhat mistrusted agent of the states, with the states retaining their power to protect their people (and themselves) ... This seems to be the view embodied in the states' rights interpretation, in which 'state armies' as set against the federal government....If applied across the board, this would have rather dramatic consequences.... Unless we are to be entirely incoherent, we would have to seriously consider rethinking constitutional history all the way back to Brown, and indeed to McCulloch v. Maryland."
"These are rather important issues, but they have not been raised, much less addressed, by the proponents of the state's rights theory. It is no accident that most of those writers are not academics, but politicians and issue-oriented activists. If I may mix my academic metaphors, the state's rights theory may be analogized to 'creation science,' a mishmash of unconnected observations and non sequiturs intended to compete with the theory of evolution. .... Similarly, the state's rights interpretation of the Second Amendment, which pays little attention to text, history, or structural sense, is not really constitutional law. It is simply a slogan."
"The founders stated what they meant by 'the militia' on various occasions. Invariably they defined it in some phrase like 'the whole body of the people,' while their references to the organized-unit-type of militia, which they called 'a select militia,' were strongly pejorative."
"In short, one purpose of the founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of individuals who made up that militia. In this context, it would never have occurred to the founders to differentiate between the arms of the two groups. The personally owned arms of the individual *were* the arms of the militia. Thus the amendment's wording, so opaque to us, made perfect sense to the founders: believing that a militia (composed of the whole people possessed of their privately owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms. At the very least, the founders' understanding of 'militia' casts doubt upon an interpretation that would guarantee only the state's right to arm organized units."
"The second amendment's literal language creates another, even more embarrassing, problem for the exclusively states' rights interpretation. To accept such requires the assumption that the framers ill-advisedly used the phrase "right of the people" to describe what was being guaranteed when they actually meant 'the right of the states.' ... The phrase 'the people' appears in four other provisions of the Bill of Rights, always denoting rights pertaining to individuals. To justify an exclusively states' rights view, the following set of propositions must be accepted: (1) when the first congress drafted the bill of rights, it used 'right of the people' in the first amendment to denote a right of individuals (to assemble); (2) then, some 16 words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, 46 words later, the fourth amendment's "right of the people" reverted to its normal individual right meaning; (4) "right of the people" was again used in its natural sense in the ninth amendment; (5) finally, in the tenth amendment, Congress specifically distinguished between 'the states' and 'the people,' although it had been unable to draw this distinction in the second amendment. Any one of these textual incongruities demanded by an exclusively states' rights position dooms it. Cumulatively, they present a truly grotesque reading of the Bill of Rights."
"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty&emdash; so dear to men, so dear to the enlightened legislator&emdash; and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree."
Go to the Self Help Legal Clinic
Liberty's Educational Advocacy Forum