« From Prawf To President...and back to Prawf? | Main | Annan On Faculty Hiring »
Wednesday, February 13, 2008
Originalism and the Second Amendment
Yesterday I moderated a debate on the Second Amendment at UCLA Law between Alan Gura, the attorney representing Heller before the Supreme Court, and Jack Rakove, the Pulitzer Prize-winning historian who filed an amicus brief on behalf of the District of Columbia in DC v. Heller. The debate focused, as so much of the debate over the Second Amendment does these days, on the original meaning of the Second Amendment. Was the original understanding of the amendment to protect a private individual right to keep and bear arms, or was the amendment designed to preserve state militias from federal interference? This debate happened to come just a few days after I taught Brown v. Board of Education. The contrast between Brown, which refused to base its decision on the original meaning of the Fourteenth Amendment, and the current, near exclusive emphasis on the original meaning of the Second Amendment raised an interesting question: where are the other theories of constitutional interpretation that we constitutional law professors teach our students?
What about a living constitution argument for Heller? I believe I saw one amicus brief for Heller make a half-hearted attempt at a LC argument, but certainly a strong one could be made. Forty-two states have constitutional provisions guaranteeing an individual right to keep and bear arms unrelated to militia service, many acts of Congress have articulated an individual rights view of the Second Amendment, and the Executive branch has signed on to this idea as well. This seems like relatively firm grounds to argue that, whatever the original meaning of the Second Amendment, the Court should construe the amendment to protect such a right. Yet this argument, which might appeal to Justices Breyer and/or Stevens, is largely left off the table.
What about political process theories? Ely's theory about the Court stepping in to keep the political process free of malfunction might be applicable here. With a dozen or so states adding individual right to bear arms provisions to their own constitutions, concealed carry laws sweeping the nation, and gunners ably represented by the NRA and others, one might conclude that gun owners are anything but a Second Amendment suspect class needing judicial protection.
One thing the lack of attention to any other theories suggests is that, no matter how controversial or political originalism is or seems to be, it remains the most legitimate, widely accepted method of constitutional interpretation. When push comes to shove, originalism is what lawyers tend to rely on when asked to interpret a seemingly ambiguous phrase of the Constitution -- regardless of Brown.
Posted by Adam Winkler on February 13, 2008 at 01:34 AM in Constitutional thoughts, Current Affairs, Teaching Law | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef00e5504bf2fb8834
Listed below are links to weblogs that reference Originalism and the Second Amendment:
Comments
In my view, the prominence of originalism in the Heller briefing is more a product of the parties' litigating strategy than anything else. The District's primary submission is that the militia clause limits the right-to-bear-arms clause. A claim that the text supplies a determinate limitation on the scope of a right is conductive to originalist analysis -- originalism is at it most persuasive when the task is at hand to ascertain the meaning of a text. If, as I expect, the District loses on this argument, the debate will turn to the relationship between the regulatory power acknowledged in the militia clause and the right recognized in the following clause. On that issue, history provides far less determinate answers. This is not uncommon -- as I have argued in a recent article that takes the due process clauses as an example, constitutional text is frequently indeterminate because indeterminancy often helps build the necessary supermajority support (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929217).
When textual meaning is indeterminate -- and it usually is when one is fair minded about the limits of historical knowledge and the difficulties in removing centuries-old judgments (what Jack Balkin has called "original intended applications") from their historical contexts -- other modalities of constitutional interpretation come to the fore. That is what I expect will happen when courts are faced with the problems of ascertaining the scope of regulatory power over firearms under the Second Amendment. Are laws prohibiting the possession of automatic weapons, bazookas, or nuclear weapons unconstitutional because these weapons have military applications and in 1791 there was a right to possess weapons useful for the common defense? I doubt that anyone on the Court will be terribly interested in taking an originalist approach to these questions.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Feb 13, 2008 11:26:06 AM
I for one do not see a 'regulatory power over firearms clause' in the Second Amendment. Perhaps one might infer a regulatory power over the militia itself, once called up to duty, but not a regulatory power over firearms themselves. I see exactly the opposite.
'Regulated' did not have the same meaning back then as it might be construed today. 'Regulated' in the parlance of the day meant well-disciplined, well-organized, and (gasp!) well-equipped (as in the militia itself, when called up to duty).
As for firearms, the Second Amendment explicitly commands that the right to keep and bear those instruments shall NOT be infringed. It is just not intellectually honest to argue that 'shall not be infringed' is somehow not in tension with the legal theory that the phrase 'well-regulated militia' gives the government regulatory power over the civilian keeping and bearing of firearms.
Posted by: David M. Bennett | Feb 16, 2008 1:30:36 PM
While arguably a living constitutionalism argument or process-oriented argument wasn't made, it seems rather clear that all the elements of one were provided. Isn't that sufficient?
Posted by: Confused | Feb 17, 2008 2:41:40 AM
Could one argue that Amend. II gives you the right to participate in the common defense through membership in a well-regulated militia.
Under such an idea, I would think federal legislation (let's call it the "Well-regulated Militia Act of 2008") could say: if you wish to keep and bear arms, we will tell you which is the first weapon you may purchase (based on income, just as the Roman century of which you were a member depended on the type of weaponry you could afford); you will then submit to periodic training and inspection of how well you are able to operate and keep safe that weapon (perhaps two weeks out of the year for the training, and surprise home inspections for the safety and condition of the weapon); you will let your militia superiors know about any subsequent weapons you purchase; and your suitability for continued service in the militia will depend on whether you continue to abide by the law, and whether you are demonstrating any mental illnesses.
To me, this creates a presumption of participation in the militia, but rebuttable for reasons that are legitimately proximate to militia service. I could be wrong, so don't take all of this as an absolute dogmatic view on my part.
The other big question is whether the 14th Amendment made the 2nd applicable to the states. The gun control people would say it does not; but since they tend to be towards the constitutional "left," then what kinds of principled or doctrinal reasons do they adduce to explain how the 2nd is distinct from the others. Would they say that a state may commandeer a house to quarter troops (for instance) without let or hindrance by the federal courts? It seems to me the whole question of which protections from the first nine amendments are enforceable against the states by the fourteenth is tremendously confused. I know that the 14th amendment is not truly at issue in the DC gun case, (though the Supreme Court has interpreted the 5th amendment to extend the 14th to the District) but the broader question of gun regulation requires consideration of it.
Do I remember correctly that Justice Thomas had a footnote where he suggested that a particular case would have been a good one to consider the privileges and immunities clause of the 14th amendment? Perhaps the doctrinal problems of enforcing personal rights against state action could be resolved by the Supreme Court taking up Justice Thomas's invitation to consider this clause anew. I mean, really, was it necessary to pass a constitutional amendment after a terrible civil war in order to (as Slaughterhouse would have it) protect my right to go to the post office?
Posted by: Edmund Unneland | Feb 20, 2008 10:10:53 AM
For those interested in an originalist argument, the History News Network has published my article severly critical of the amicus brief filed before the U.S. Supreme Court by fifteen professional academic historians in support of Washington D.C.'s handgun ban in the Heller case.
The direct link to the HNN article is:
http://hnn.us/articles/47238.html
Posted by: David E. Young | Feb 22, 2008 7:52:14 PM
As we well know, the Second Amendment to the Bill of Rights commands that:
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.
However, bureaucrats at the Department of Justice have taken the position that the Second Amendment says that:
A well-regulated militia being necessary to the security of a free state, the right of the People to keep and bear arms may be subject to reasonable restrictions.
The DOJ Brief essentially asks the Supreme Court to amend the 2nd Amendment to strike out ‘shall not be infringed’ and insert ‘may be subject to reasonable restrictions’.
Posted by: David M. Bennett | Mar 14, 2008 12:19:25 PM
The comments to this entry are closed.
