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July 24, 2000/Vol 5, Number 42
Taking the Second Amendment Seriously
Finally, and for good reason, a gun control statute has been struck down as unconstitutional.
By Nelson Lund
Timothy Joe Emerson is a Texas physician who lawfully bought a pistol in 1997. About a
year later, Emerson's wife filed for divorce and sought a temporary injunction containing
29 separate prohibitions, most of them aimed at protecting Mrs. Emerson's financial
interests. The proposed order also prohibited various sorts of interference with the
couple's child, and it forbade Emerson to threaten or injure his wife or to communicate
with her in vulgar or indecent language.
At a hearing on whether to grant the injunction, the state divorce court judge explored the
financial circumstances of the couple and decided on the amount of temporary child
support Emerson should provide. In her testimony, Mrs. Emerson reported that her
husband had threatened her new boyfriend but denied that Emerson had threatened her.
The judge issued the injunction, but he made no findings that Emerson was likely to
commit any of the 29 separate acts prohibited in the temporary restraining order, many of
which were not alluded to in any way during the hearing.
Nothing in the story so far is unusual. It is apparently routine for Texas courts to issue
such prophylactic restraining orders in divorce cases, without evidence that the acts
prohibited in those orders would otherwise be likely to occur. The story became less
commonplace when Mrs. Emerson subsequently accused her husband of brandishing the
pistol, and federal prosecutors took up the case. A federal grand jury indicted Emerson in
December 1998 for violating an obscure portion of the 1994 Violent Crime Control Act,
which is better known for its prohibition of certain so-called assault weapons. The
provision used against Emerson appears on its face to impose a ban on firearms
possession by any person who is subject to a court order that prohibits him from using or
threatening physical violence against an "intimate partner" or that partner's child.
This was too much for Judge Sam R. Cummings, a federal trial judge in Texas, who last
year declared the indictment unconstitutional. Cummings reasoned that if the federal
statute had been triggered by a court order based on a finding of danger to Mrs. Emerson
or her child, forbidding Mr. Emerson to own a gun might be a reasonable regulation. But
because the prosecution was based on a boilerplate order that was unsupported by any
such finding, it violated Emerson's Second Amendment right to keep and bear arms.
Had this case concerned any other part of the Bill of Rights, Cummings's analysis would
have bordered on the obvious. The law, for example, forbids us to libel other people. But
this doesn't mean that anyone who has been officially told to refrain from breaking the
libel laws can also be told to remain completely silent, or be barred from possessing a
printing press. If it did, a legislature could simply outlaw speech, or printing presses, on
the ground that this would help prevent libel. While this sort of sweeping prior restraint
might be very effective in preventing libel, it would violate the First Amendment.
Judge Cummings thought that the same kind of analysis should apply to Emerson's case.
The law forbids people to cause or threaten bodily injury to others. But how can people be
deprived of their right to possess arms merely because they have been told to obey the
law? If they could, it would seem to follow that Congress could choose to promote
obedience to the laws against murder and assault by forbidding everyone to possess
weapons. And the Second Amendment would then mean only that the right of the people
to keep and bear arms shall not be infringed unless the government decides to infringe it.
Despite the obvious logic in Cummings's opinion, his decision has created a stir, and
rightly so. The federal courts had never before invalidated any gun control statute for
violating the Second Amendment. What's more, almost every court of appeals in the
country has concluded that this part of the Bill of Rights means nothing at all, or so close
to nothing that it might as well not exist.
Cummings's decision, however, is not doomed to inevitable reversal. Unlike most lower
courts, the Supreme Court has never decided to boot the Second Amendment out of the
Constitution, and neither has the Fifth U.S. Circuit Court of Appeals (which covers Judge
Cummings's northern Texas jurisdiction). Those two courts have decided only a handful of
Second Amendment cases and always on narrow grounds. It is therefore possible that the
long pattern of judicial hostility to the Second Amendment could soon be broken.
The Fifth Circuit heard oral arguments in the government's appeal of Cummings's decision
on June 13. The session featured a number of humorous exchanges, including comments by
the judges about their own personal arsenals, and an embarrassing display of ignorance by
the government's lawyer about the statutory definition of the term "militia." But the most
promising aspect of the argument was how little interest the judges showed in joining the
many other courts that have treated the Second Amendment as a kind of enemy alien
within the Bill of Rights.
Though it is always dangerous to predict what courts will do on the basis of judges'
questions at oral argument, the following possibilities seem most likely. The court may
simply avoid the Second Amendment issue by holding that the 1994 Violent Crime
provision exceeds congressional authority under the Supreme Court's recent federalism
decisions. Another way of avoiding serious Second Amendment questions would be to
dismiss the indictment of Emerson on the ground that the federal statute includes an
implied limitation to cases where there has been a judicial finding of dangerousness to
the "intimate partner" or child. But it is also possible that the Fifth Circuit will conclude
Cummings was right, and that the statute violates the Second Amendment.
If the court goes down this last road, the Emerson case could be headed for the Supreme
Court. And whether in this case or some other, the Supreme Court will eventually have to
decide whether the Second Amendment is going to remain in the Constitution. It is
therefore worth understanding why expunging it would require a level of sophistry and
willfulness on a par with such disastrous instances of high court usurpation as Dred
Scott and Roe v. Wade.
For much of the twentieth century, there were two schools of thought about the meaning
of the Second Amendment. Virtually the entire legal establishment, from the professoriate
to most appeals courts, asserted that it protects only the right of state governments to
maintain military organizations like the National Guard. On the other hand, people who
read English in the normal way thought that it protects the right of individual citizens to
keep and bear arms.
If the framers of the Second Amendment had simply provided that "the right of the people
to keep and bear arms shall not be infringed," even a lawyer would have trouble denying
that it creates an individual right like the other "rights of the people" described in the Bill
of Rights. But that's not what they did. Instead, they appended an explanatory
introduction, so that the constitutional text says: "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 introductory phrase, however, does not change the meaning of the operative clause,
and the Second Amendment means exactly what it would have meant had the preface
been omitted. To see why that's so, and also why such an explanatory preface makes
perfect sense, one needs to grasp two interrelated arguments. The first is based on the
text of the Second Amendment and its relationship with other clauses in the Constitution.
The second focuses on the immediate political problem that the preface was meant to
address.
Let's start with the text of the Second Amendment. The operative clause protects a "right
of the people," which is exactly the same terminology used in the First Amendment and
the Fourth Amendment. Those two provisions indubitably protect individual (not states')
rights, and so does the Second Amendment.
What the introductory phrase tells us is that this individual right is protected, at least in
part, because doing so will foster a well-regulated militia. Before asking how it can do
that, it's worth emphasizing what the Second Amendment does not say.
It emphatically does not protect the right of the militia to keep and bear arms. The
people and the militia were and are two very different entities. Nor does the Second
Amendment say that the people's right to arms is sufficient to establish a well-regulated
militia, or that a well-regulated militia is sufficient for the security of a free state.
Nor does the Second Amendment say that the right of the people to keep and bear arms is
protected only to the extent that such a right fosters a well-regulated militia or the
security of a free state.
In order to see why the introductory phrase cannot be interpreted as qualifying the right
of the people to keep and bear arms, one need only consider the Patent and Copyright
Clause, which is the Constitution's nearest grammatical cousin to the Second Amendment.
That clause gives Congress the power "to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries."
Nobody thinks the prefatory language limits the reach of the granted power. It doesn't
mean Congress must stop granting copyrights to racists or pornographers or Luddites, who
are hardly promoting the progress of science. And yet the grammatical case for this
interpretation would be much stronger than the legal establishment's reading of the
Second Amendment's militia phrase as a limitation on the right to arms. Moreover, state
constitutions from the founding period were littered with explanatory prefaces like the
one in the Second Amendment, which were never construed to change the meaning of the
operative clauses to which they were appended.
How, then, can the individual right to keep and bear arms contribute to fostering a
well-regulated militia? To answer that question, we have to look at the original
Constitution, which allocates responsibility for governing the militia. It tells us five things
that are crucially important in understanding the Second Amendment.
First, the militia is not the army. The Constitution has separate provisions for each and
it never confuses or blends the two.
Second, Congress is given almost plenary authority over the army and the militia alike.
The only powers reserved to the states are the rights to appoint militia officers and to
train the militia according to rules prescribed by Congress.
Third, the Constitution nowhere defines the militia. There is abundant historical
evidence that the founding generation saw a fundamental difference between armies
(usually composed of professional soldiers) and the militia (consisting of civilians
temporarily summoned to meet public emergencies). But there is also abundant evidence
that the founding generation was acutely aware the militia could be converted into the
functional equivalent of an army. There had been examples of this in England, and we
have an example today in the National Guard.
Fourth, the Constitution imposes no duties whatsoever on the federal government,
either with respect to armies or with respect to the militia. Congress is not required to
organize the militia in any particular way, or to keep it well regulated, or indeed to do
anything at all to secure its existence.
Fifth, the Constitution expressly prohibits the states from keeping troops without the
consent of Congress.
Turning back to the Second Amendment with these facts in mind, it becomes apparent
why the Second Amendment cannot possibly have been a states' rights
amendment—meant to constitutionalize a right of states to keep up military organizations
like the National Guard. That theory implies that the Second Amendment silently
repealed or amended two separate provisions of the Constitution: the clause giving the
federal government virtually complete authority over the militia, and the clause forbidding
the states to keep troops without the consent of Congress. These provisions have allowed
the federal government essentially to eliminate the state militias as independent military
forces by turning them into adjuncts of the federal army through the National Guard
system. Under the states' rights theory of the Second Amendment, this takeover of the
National Guard would represent an unconstitutional usurpation of state power by
Washington.
But of course the Second Amendment is not about states' rights, and the relationship
between its introductory phrase and its operative clause turns out to be deceptively
simple. A well-regulated militia is not one that is heavily regulated, but rather one that is
not inappropriately regulated. Recall that the original Constitution gives Congress almost
unlimited authority to regulate the militia. As the operative clause of the Second
Amendment makes perfectly clear, its purpose is simply to forbid one kind of
inappropriate regulation (among the infinite possible regulations) that Congress might be
tempted to enact. What is that one kind of inappropriate regulation? Disarming the
citizenry from among whom any true militia must be constituted.
Congress is permitted to do many things that harm the militia, and to omit many things
that are necessary for a well-regulated militia. Congress may pervert the militia into the
functional equivalent of an army, or even deprive it completely of any meaningful
existence. A lot of those things have in fact been done, and many members of the founding
generation would have strongly disapproved. But the original Constitution allowed it, and
the Second Amendment did not purport to interfere with congressional latitude to regulate
the militia. The one and only thing the Second Amendment does is expressly forbid a
particular, and particularly extravagant, extension of Congress's authority over the militia.
Whatever the federal government does or fails to do about the militia, the Second
Amendment forbids it from disarming citizens under the pretense of regulating the militia.
The Second Amendment was a response to a more specific and difficult political problem
than most other provisions in the Bill of Rights. Because of historical memories going
back to the period before the Glorious Revolution, and because of actual memories of
abuses by British troops in the colonies, the founding generation was marked by a strong
and widespread aversion to peacetime standing armies. The militia system was treasured
by many people because the existence of a well-regulated militia, composed of civilians
readily available for emergency military service, tended to deprive the government of an
excuse for maintaining standing armies.
Not everyone shared this sentiment. Alexander Hamilton, for one, complained that the
militia system violated the economic principle of division of labor. More important, even
those who treasured the militia recognized that it was fragile. And the reason it was
fragile was the same reason that made Hamilton think it was stupid: Citizens were
always going to resist unpaid military training, and governments were always going to be
strongly tempted to acquire more professional (and therefore more efficient and tractable)
forces.
This led to a dilemma at the Constitutional Convention. Experience during the
Revolutionary War had demonstrated that militia forces could not be relied on for national
defense. The decision was therefore made to give the federal government almost
unfettered authority to establish armies, including peacetime standing armies. But that
decision created a threat to liberty, especially in light of the fact that the Convention also
decided to forbid the states from establishing armies of their own without the consent of
Congress.
One solution might have been to require Congress to establish and maintain a
well-disciplined militia, but it was impossible for the Constitution to define a
well-regulated or well-disciplined militia with the requisite precision and detail. Another
solution might have been to give the states control over the militia and forbid Congress
from interfering. The Anti-Federalists favored this solution, but it was also unworkable.
Collective action and coordination problems would have resulted in an absence of
uniformity in training, equipment, and command; no really effective fighting force could
have been created.
The conundrum could not in fact be solved, and the Convention did not purport to solve it.
Neither does the Second Amendment. What the Second Amendment does is ameliorate
the problem slightly. Faced with a choice between a standing army and a well-regulated
militia, the federal government might well prefer to establish a standing army and allow
the militia to fall into desuetude. But faced with the choice between a well-trained
militia and an armed but undisciplined citizenry, the government might prefer to keep the
militia in good order. In this way, and in this way alone, the Second Amendment could
contribute to fostering a well-regulated militia.
This interpretation of the Second Amendment is consistent with all the historical
evidence. For instance, in the ratification debates about the original Constitution,
Anti-Federalists argued that federal control over the militia would take away from the
states their principal means of defense against federal oppression and usurpation—a
serious danger by their reading of European history.
James Madison responded that such fears of federal oppression were overblown, in part
because the new government would be structured differently from European governments.
He then pointed to another, and decisive, difference between America and Europe: The
American people were armed and would therefore be almost impossible to subdue through
military force, even if you imagined that the federal government would try to use its
armies to do so.
In this debate, the Federalists and Anti-Federalists shared two assumptions: that the
proposed new Constitution gave the federal government almost total legal authority over
the army and the militia; and that the federal government should not have any authority
to disarm the citizenry.
The disagreement was only over the narrower question of how effective armed civilians
could be in protecting liberty. Anti-Federalists regarded the armed citizenry, and hence
the Second Amendment itself, as a rather trivial safeguard against federal oppression. But
the very inadequacy (from an Anti-Federalist point of view) of the protection that an
armed citizenry could offer against federal oppression also rendered the Second
Amendment noncontroversial. It could not satisfy the Anti-Federalist desire to preserve
the military superiority of the states over the federal government. That would have been
very controversial, and nobody so much as hinted that the Second Amendment created or
protected any sort of right belonging to state governments.
As a political gesture to the Anti-Federalists, the Second Amendment's express
recognition of the right to arms was something of a sop. But the provision was easily
accepted because everyone agreed that the federal government should not have the
power to infringe the right of the people to keep and bear arms, any more than it should
have the power to abridge the freedom of speech or prohibit the free exercise of religion.
Where does this leave us? It leaves us with a great many interesting and important
questions about the meaning of the Second Amendment. But before those questions can
be addressed properly, we have to free ourselves from the notion that has for decades held
sway in the courts and among the legal establishment—that the constitutional right to
keep and bear arms is essentially tied up with military service, or that it was meant to
create a right of states to maintain a military counterweight against the federal
government.
What the courts should do, starting with the Emerson case, is subject federal gun control
laws to the same close scrutiny they apply to other statutes that are challenged under the
Bill of Rights. That undertaking will leave room for many debates in which reasonable
minds can differ, as is true with other provisions of the Bill of Rights. But anarchy will
not descend upon the land.
Indeed, most existing federal regulations of gun ownership would probably survive such
scrutiny because they are sufficiently well tailored to achieve sufficiently important
government purposes. It is not constitutionally problematic, for instance, to limit the
Second Amendment rights of exceptionally dangerous people, such as violent felons and
adjudicated mental defectives.
Even the statute at issue in Emerson could be applied constitutionally in cases where a
court has reasonably found that someone represents a real threat to the physical safety of
his family. Just as a divorce court judge may forbid an abusive husband to continue
subjecting his wife to hateful late-night telephone tirades, so a judge should be able to
deprive a genuinely threatening man of the right to acquire convenient tools for murdering
his wife.
But the Emerson case itself is different. An injunction was issued with no evidence that
the defendant had ever threatened his wife, and no court had ever found that he was a
danger to her. By its literal terms, the 1994 Violent Crime Control statute purports to
impose gun controls on citizens like Emerson who have never been convicted of a crime
and who have never been shown to be any more dangerous than anyone else. If these
individuals can lose their Second Amendment rights merely because a divorce court judge
has entered a routine order instructing them to obey the law, it becomes difficult to
imagine that any civilian disarmament statute could violate the Constitution.
The courts have no legitimate authority to adopt an "interpretation" of the Second
Amendment that renders it nugatory. Nor should one suppose that this provision of the
Constitution has lost its value because we lack the founding generation's intense fear of
standing armies and federal oppression. The Second Amendment makes no sharp
distinction between the use of guns to resist oppression by the government and their use
to resist oppression from which the government fails to protect us.
The purpose of the Second Amendment is to protect the fundamental right of self-defense,
and thereby to protect the interests of a free political community. For the Framers, those
interests were at stake whether the threat took the form of a foreign invasion, a political
coup, marauding Indians, or a simple highwayman. It was for this reason natural that the
Constitution authorized the militia to be used "to execute the laws of the Union, suppress
insurrections and repel invasions."
Even if one supposes that civilians will never need arms to resist political oppression, the
Second Amendment will thus continue to serve an important constitutional purpose. The
government has neither the obligation nor the ability to offer its citizens reliable
protection from murder, rape, and robbery. The police almost always arrive at the scene of
a crime well after the crime has been committed, and no one would want to have police
officers stationed everywhere that crime might occur. These fundamental aspects of
American society have not changed since the eighteenth century, and an armed citizenry
continues to have great value both to those who choose to be armed and to their fellow
citizens.
In fact, armed resistance to criminal violence is very common. It occurs on the order of
two million times each year, and in most of these cases a mere display of the weapon
scares off the attacker. Furthermore, armed resistance is much more often successful than
passive acquiescence in preventing injuries to the victim, especially when a woman is the
target of an attack.
An armed citizenry is also an extremely powerful deterrent to violent crime. Burglary
rates of occupied dwellings, for example, are much lower in America than in England.
Similarly, states adopting laws that allow civilians to carry concealed weapons have seen
significant drops in violent crime rates. The huge number of crimes that are invisibly
deterred by America's armed citizenry constitute an important private and public benefit.
Congress has no more right to take away this benefit than it does to deprive us of the
benefits of a free press or the free exercise of religion. It is true that these freedoms, like
the right to arms, have costs as well as benefits. But it is also true that in all three cases
the framers of our Constitution rightly calculated that the benefits outweigh the costs. It
is time for the courts to stop substituting ill-considered policy preferences for the legally
binding wisdom embodied in the Constitution. ®
By Nelson Lund
© COPYRIGHT 1999, NEWS CORPORATION, WEEKLYSTANDARD, ALL RIGHTS RESERVED.
July 24, 2000/Vol 5, Number 42
Taking the Second Amendment Seriously
Finally, and for good reason, a gun control statute has been struck down as unconstitutional.
By Nelson Lund
Timothy Joe Emerson is a Texas physician who lawfully bought a pistol in 1997. About a
year later, Emerson's wife filed for divorce and sought a temporary injunction containing
29 separate prohibitions, most of them aimed at protecting Mrs. Emerson's financial
interests. The proposed order also prohibited various sorts of interference with the
couple's child, and it forbade Emerson to threaten or injure his wife or to communicate
with her in vulgar or indecent language.
At a hearing on whether to grant the injunction, the state divorce court judge explored the
financial circumstances of the couple and decided on the amount of temporary child
support Emerson should provide. In her testimony, Mrs. Emerson reported that her
husband had threatened her new boyfriend but denied that Emerson had threatened her.
The judge issued the injunction, but he made no findings that Emerson was likely to
commit any of the 29 separate acts prohibited in the temporary restraining order, many of
which were not alluded to in any way during the hearing.
Nothing in the story so far is unusual. It is apparently routine for Texas courts to issue
such prophylactic restraining orders in divorce cases, without evidence that the acts
prohibited in those orders would otherwise be likely to occur. The story became less
commonplace when Mrs. Emerson subsequently accused her husband of brandishing the
pistol, and federal prosecutors took up the case. A federal grand jury indicted Emerson in
December 1998 for violating an obscure portion of the 1994 Violent Crime Control Act,
which is better known for its prohibition of certain so-called assault weapons. The
provision used against Emerson appears on its face to impose a ban on firearms
possession by any person who is subject to a court order that prohibits him from using or
threatening physical violence against an "intimate partner" or that partner's child.
This was too much for Judge Sam R. Cummings, a federal trial judge in Texas, who last
year declared the indictment unconstitutional. Cummings reasoned that if the federal
statute had been triggered by a court order based on a finding of danger to Mrs. Emerson
or her child, forbidding Mr. Emerson to own a gun might be a reasonable regulation. But
because the prosecution was based on a boilerplate order that was unsupported by any
such finding, it violated Emerson's Second Amendment right to keep and bear arms.
Had this case concerned any other part of the Bill of Rights, Cummings's analysis would
have bordered on the obvious. The law, for example, forbids us to libel other people. But
this doesn't mean that anyone who has been officially told to refrain from breaking the
libel laws can also be told to remain completely silent, or be barred from possessing a
printing press. If it did, a legislature could simply outlaw speech, or printing presses, on
the ground that this would help prevent libel. While this sort of sweeping prior restraint
might be very effective in preventing libel, it would violate the First Amendment.
Judge Cummings thought that the same kind of analysis should apply to Emerson's case.
The law forbids people to cause or threaten bodily injury to others. But how can people be
deprived of their right to possess arms merely because they have been told to obey the
law? If they could, it would seem to follow that Congress could choose to promote
obedience to the laws against murder and assault by forbidding everyone to possess
weapons. And the Second Amendment would then mean only that the right of the people
to keep and bear arms shall not be infringed unless the government decides to infringe it.
Despite the obvious logic in Cummings's opinion, his decision has created a stir, and
rightly so. The federal courts had never before invalidated any gun control statute for
violating the Second Amendment. What's more, almost every court of appeals in the
country has concluded that this part of the Bill of Rights means nothing at all, or so close
to nothing that it might as well not exist.
Cummings's decision, however, is not doomed to inevitable reversal. Unlike most lower
courts, the Supreme Court has never decided to boot the Second Amendment out of the
Constitution, and neither has the Fifth U.S. Circuit Court of Appeals (which covers Judge
Cummings's northern Texas jurisdiction). Those two courts have decided only a handful of
Second Amendment cases and always on narrow grounds. It is therefore possible that the
long pattern of judicial hostility to the Second Amendment could soon be broken.
The Fifth Circuit heard oral arguments in the government's appeal of Cummings's decision
on June 13. The session featured a number of humorous exchanges, including comments by
the judges about their own personal arsenals, and an embarrassing display of ignorance by
the government's lawyer about the statutory definition of the term "militia." But the most
promising aspect of the argument was how little interest the judges showed in joining the
many other courts that have treated the Second Amendment as a kind of enemy alien
within the Bill of Rights.
Though it is always dangerous to predict what courts will do on the basis of judges'
questions at oral argument, the following possibilities seem most likely. The court may
simply avoid the Second Amendment issue by holding that the 1994 Violent Crime
provision exceeds congressional authority under the Supreme Court's recent federalism
decisions. Another way of avoiding serious Second Amendment questions would be to
dismiss the indictment of Emerson on the ground that the federal statute includes an
implied limitation to cases where there has been a judicial finding of dangerousness to
the "intimate partner" or child. But it is also possible that the Fifth Circuit will conclude
Cummings was right, and that the statute violates the Second Amendment.
If the court goes down this last road, the Emerson case could be headed for the Supreme
Court. And whether in this case or some other, the Supreme Court will eventually have to
decide whether the Second Amendment is going to remain in the Constitution. It is
therefore worth understanding why expunging it would require a level of sophistry and
willfulness on a par with such disastrous instances of high court usurpation as Dred
Scott and Roe v. Wade.
For much of the twentieth century, there were two schools of thought about the meaning
of the Second Amendment. Virtually the entire legal establishment, from the professoriate
to most appeals courts, asserted that it protects only the right of state governments to
maintain military organizations like the National Guard. On the other hand, people who
read English in the normal way thought that it protects the right of individual citizens to
keep and bear arms.
If the framers of the Second Amendment had simply provided that "the right of the people
to keep and bear arms shall not be infringed," even a lawyer would have trouble denying
that it creates an individual right like the other "rights of the people" described in the Bill
of Rights. But that's not what they did. Instead, they appended an explanatory
introduction, so that the constitutional text says: "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 introductory phrase, however, does not change the meaning of the operative clause,
and the Second Amendment means exactly what it would have meant had the preface
been omitted. To see why that's so, and also why such an explanatory preface makes
perfect sense, one needs to grasp two interrelated arguments. The first is based on the
text of the Second Amendment and its relationship with other clauses in the Constitution.
The second focuses on the immediate political problem that the preface was meant to
address.
Let's start with the text of the Second Amendment. The operative clause protects a "right
of the people," which is exactly the same terminology used in the First Amendment and
the Fourth Amendment. Those two provisions indubitably protect individual (not states')
rights, and so does the Second Amendment.
What the introductory phrase tells us is that this individual right is protected, at least in
part, because doing so will foster a well-regulated militia. Before asking how it can do
that, it's worth emphasizing what the Second Amendment does not say.
It emphatically does not protect the right of the militia to keep and bear arms. The
people and the militia were and are two very different entities. Nor does the Second
Amendment say that the people's right to arms is sufficient to establish a well-regulated
militia, or that a well-regulated militia is sufficient for the security of a free state.
Nor does the Second Amendment say that the right of the people to keep and bear arms is
protected only to the extent that such a right fosters a well-regulated militia or the
security of a free state.
In order to see why the introductory phrase cannot be interpreted as qualifying the right
of the people to keep and bear arms, one need only consider the Patent and Copyright
Clause, which is the Constitution's nearest grammatical cousin to the Second Amendment.
That clause gives Congress the power "to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries."
Nobody thinks the prefatory language limits the reach of the granted power. It doesn't
mean Congress must stop granting copyrights to racists or pornographers or Luddites, who
are hardly promoting the progress of science. And yet the grammatical case for this
interpretation would be much stronger than the legal establishment's reading of the
Second Amendment's militia phrase as a limitation on the right to arms. Moreover, state
constitutions from the founding period were littered with explanatory prefaces like the
one in the Second Amendment, which were never construed to change the meaning of the
operative clauses to which they were appended.
How, then, can the individual right to keep and bear arms contribute to fostering a
well-regulated militia? To answer that question, we have to look at the original
Constitution, which allocates responsibility for governing the militia. It tells us five things
that are crucially important in understanding the Second Amendment.
First, the militia is not the army. The Constitution has separate provisions for each and
it never confuses or blends the two.
Second, Congress is given almost plenary authority over the army and the militia alike.
The only powers reserved to the states are the rights to appoint militia officers and to
train the militia according to rules prescribed by Congress.
Third, the Constitution nowhere defines the militia. There is abundant historical
evidence that the founding generation saw a fundamental difference between armies
(usually composed of professional soldiers) and the militia (consisting of civilians
temporarily summoned to meet public emergencies). But there is also abundant evidence
that the founding generation was acutely aware the militia could be converted into the
functional equivalent of an army. There had been examples of this in England, and we
have an example today in the National Guard.
Fourth, the Constitution imposes no duties whatsoever on the federal government,
either with respect to armies or with respect to the militia. Congress is not required to
organize the militia in any particular way, or to keep it well regulated, or indeed to do
anything at all to secure its existence.
Fifth, the Constitution expressly prohibits the states from keeping troops without the
consent of Congress.
Turning back to the Second Amendment with these facts in mind, it becomes apparent
why the Second Amendment cannot possibly have been a states' rights
amendment—meant to constitutionalize a right of states to keep up military organizations
like the National Guard. That theory implies that the Second Amendment silently
repealed or amended two separate provisions of the Constitution: the clause giving the
federal government virtually complete authority over the militia, and the clause forbidding
the states to keep troops without the consent of Congress. These provisions have allowed
the federal government essentially to eliminate the state militias as independent military
forces by turning them into adjuncts of the federal army through the National Guard
system. Under the states' rights theory of the Second Amendment, this takeover of the
National Guard would represent an unconstitutional usurpation of state power by
Washington.
But of course the Second Amendment is not about states' rights, and the relationship
between its introductory phrase and its operative clause turns out to be deceptively
simple. A well-regulated militia is not one that is heavily regulated, but rather one that is
not inappropriately regulated. Recall that the original Constitution gives Congress almost
unlimited authority to regulate the militia. As the operative clause of the Second
Amendment makes perfectly clear, its purpose is simply to forbid one kind of
inappropriate regulation (among the infinite possible regulations) that Congress might be
tempted to enact. What is that one kind of inappropriate regulation? Disarming the
citizenry from among whom any true militia must be constituted.
Congress is permitted to do many things that harm the militia, and to omit many things
that are necessary for a well-regulated militia. Congress may pervert the militia into the
functional equivalent of an army, or even deprive it completely of any meaningful
existence. A lot of those things have in fact been done, and many members of the founding
generation would have strongly disapproved. But the original Constitution allowed it, and
the Second Amendment did not purport to interfere with congressional latitude to regulate
the militia. The one and only thing the Second Amendment does is expressly forbid a
particular, and particularly extravagant, extension of Congress's authority over the militia.
Whatever the federal government does or fails to do about the militia, the Second
Amendment forbids it from disarming citizens under the pretense of regulating the militia.
The Second Amendment was a response to a more specific and difficult political problem
than most other provisions in the Bill of Rights. Because of historical memories going
back to the period before the Glorious Revolution, and because of actual memories of
abuses by British troops in the colonies, the founding generation was marked by a strong
and widespread aversion to peacetime standing armies. The militia system was treasured
by many people because the existence of a well-regulated militia, composed of civilians
readily available for emergency military service, tended to deprive the government of an
excuse for maintaining standing armies.
Not everyone shared this sentiment. Alexander Hamilton, for one, complained that the
militia system violated the economic principle of division of labor. More important, even
those who treasured the militia recognized that it was fragile. And the reason it was
fragile was the same reason that made Hamilton think it was stupid: Citizens were
always going to resist unpaid military training, and governments were always going to be
strongly tempted to acquire more professional (and therefore more efficient and tractable)
forces.
This led to a dilemma at the Constitutional Convention. Experience during the
Revolutionary War had demonstrated that militia forces could not be relied on for national
defense. The decision was therefore made to give the federal government almost
unfettered authority to establish armies, including peacetime standing armies. But that
decision created a threat to liberty, especially in light of the fact that the Convention also
decided to forbid the states from establishing armies of their own without the consent of
Congress.
One solution might have been to require Congress to establish and maintain a
well-disciplined militia, but it was impossible for the Constitution to define a
well-regulated or well-disciplined militia with the requisite precision and detail. Another
solution might have been to give the states control over the militia and forbid Congress
from interfering. The Anti-Federalists favored this solution, but it was also unworkable.
Collective action and coordination problems would have resulted in an absence of
uniformity in training, equipment, and command; no really effective fighting force could
have been created.
The conundrum could not in fact be solved, and the Convention did not purport to solve it.
Neither does the Second Amendment. What the Second Amendment does is ameliorate
the problem slightly. Faced with a choice between a standing army and a well-regulated
militia, the federal government might well prefer to establish a standing army and allow
the militia to fall into desuetude. But faced with the choice between a well-trained
militia and an armed but undisciplined citizenry, the government might prefer to keep the
militia in good order. In this way, and in this way alone, the Second Amendment could
contribute to fostering a well-regulated militia.
This interpretation of the Second Amendment is consistent with all the historical
evidence. For instance, in the ratification debates about the original Constitution,
Anti-Federalists argued that federal control over the militia would take away from the
states their principal means of defense against federal oppression and usurpation—a
serious danger by their reading of European history.
James Madison responded that such fears of federal oppression were overblown, in part
because the new government would be structured differently from European governments.
He then pointed to another, and decisive, difference between America and Europe: The
American people were armed and would therefore be almost impossible to subdue through
military force, even if you imagined that the federal government would try to use its
armies to do so.
In this debate, the Federalists and Anti-Federalists shared two assumptions: that the
proposed new Constitution gave the federal government almost total legal authority over
the army and the militia; and that the federal government should not have any authority
to disarm the citizenry.
The disagreement was only over the narrower question of how effective armed civilians
could be in protecting liberty. Anti-Federalists regarded the armed citizenry, and hence
the Second Amendment itself, as a rather trivial safeguard against federal oppression. But
the very inadequacy (from an Anti-Federalist point of view) of the protection that an
armed citizenry could offer against federal oppression also rendered the Second
Amendment noncontroversial. It could not satisfy the Anti-Federalist desire to preserve
the military superiority of the states over the federal government. That would have been
very controversial, and nobody so much as hinted that the Second Amendment created or
protected any sort of right belonging to state governments.
As a political gesture to the Anti-Federalists, the Second Amendment's express
recognition of the right to arms was something of a sop. But the provision was easily
accepted because everyone agreed that the federal government should not have the
power to infringe the right of the people to keep and bear arms, any more than it should
have the power to abridge the freedom of speech or prohibit the free exercise of religion.
Where does this leave us? It leaves us with a great many interesting and important
questions about the meaning of the Second Amendment. But before those questions can
be addressed properly, we have to free ourselves from the notion that has for decades held
sway in the courts and among the legal establishment—that the constitutional right to
keep and bear arms is essentially tied up with military service, or that it was meant to
create a right of states to maintain a military counterweight against the federal
government.
What the courts should do, starting with the Emerson case, is subject federal gun control
laws to the same close scrutiny they apply to other statutes that are challenged under the
Bill of Rights. That undertaking will leave room for many debates in which reasonable
minds can differ, as is true with other provisions of the Bill of Rights. But anarchy will
not descend upon the land.
Indeed, most existing federal regulations of gun ownership would probably survive such
scrutiny because they are sufficiently well tailored to achieve sufficiently important
government purposes. It is not constitutionally problematic, for instance, to limit the
Second Amendment rights of exceptionally dangerous people, such as violent felons and
adjudicated mental defectives.
Even the statute at issue in Emerson could be applied constitutionally in cases where a
court has reasonably found that someone represents a real threat to the physical safety of
his family. Just as a divorce court judge may forbid an abusive husband to continue
subjecting his wife to hateful late-night telephone tirades, so a judge should be able to
deprive a genuinely threatening man of the right to acquire convenient tools for murdering
his wife.
But the Emerson case itself is different. An injunction was issued with no evidence that
the defendant had ever threatened his wife, and no court had ever found that he was a
danger to her. By its literal terms, the 1994 Violent Crime Control statute purports to
impose gun controls on citizens like Emerson who have never been convicted of a crime
and who have never been shown to be any more dangerous than anyone else. If these
individuals can lose their Second Amendment rights merely because a divorce court judge
has entered a routine order instructing them to obey the law, it becomes difficult to
imagine that any civilian disarmament statute could violate the Constitution.
The courts have no legitimate authority to adopt an "interpretation" of the Second
Amendment that renders it nugatory. Nor should one suppose that this provision of the
Constitution has lost its value because we lack the founding generation's intense fear of
standing armies and federal oppression. The Second Amendment makes no sharp
distinction between the use of guns to resist oppression by the government and their use
to resist oppression from which the government fails to protect us.
The purpose of the Second Amendment is to protect the fundamental right of self-defense,
and thereby to protect the interests of a free political community. For the Framers, those
interests were at stake whether the threat took the form of a foreign invasion, a political
coup, marauding Indians, or a simple highwayman. It was for this reason natural that the
Constitution authorized the militia to be used "to execute the laws of the Union, suppress
insurrections and repel invasions."
Even if one supposes that civilians will never need arms to resist political oppression, the
Second Amendment will thus continue to serve an important constitutional purpose. The
government has neither the obligation nor the ability to offer its citizens reliable
protection from murder, rape, and robbery. The police almost always arrive at the scene of
a crime well after the crime has been committed, and no one would want to have police
officers stationed everywhere that crime might occur. These fundamental aspects of
American society have not changed since the eighteenth century, and an armed citizenry
continues to have great value both to those who choose to be armed and to their fellow
citizens.
In fact, armed resistance to criminal violence is very common. It occurs on the order of
two million times each year, and in most of these cases a mere display of the weapon
scares off the attacker. Furthermore, armed resistance is much more often successful than
passive acquiescence in preventing injuries to the victim, especially when a woman is the
target of an attack.
An armed citizenry is also an extremely powerful deterrent to violent crime. Burglary
rates of occupied dwellings, for example, are much lower in America than in England.
Similarly, states adopting laws that allow civilians to carry concealed weapons have seen
significant drops in violent crime rates. The huge number of crimes that are invisibly
deterred by America's armed citizenry constitute an important private and public benefit.
Congress has no more right to take away this benefit than it does to deprive us of the
benefits of a free press or the free exercise of religion. It is true that these freedoms, like
the right to arms, have costs as well as benefits. But it is also true that in all three cases
the framers of our Constitution rightly calculated that the benefits outweigh the costs. It
is time for the courts to stop substituting ill-considered policy preferences for the legally
binding wisdom embodied in the Constitution. ®
By Nelson Lund
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