Why I hate the individual right interpretation of the Second Amendment and so should you.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.–James Madison

It cannot be presumed that any clause in the constitution is intended to be without effect;–Marbury v. Madison, 5 U.S. 137 (1803).

I was thinking about calling this post The Truly Embarrassing Militia Clauses of the US Constitution as a take of on Sandford Levinson’s “The Embarrassing Second Amendment”. In it, Levinson points out that “the second amendment is not taken seriously by most scholars.” Levinson then says:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay –The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.

Problem is that Lawyers know the rules of the game better than most plain folks, and in Constitutional law, it appears some know it far better than 5 of the Judges on the Supreme court. Never mind that when Levinson wrote his piece (1989-1990) the Civic Right interpretation was pretty much the norm. The Second Amendment was neglected since it was pretty much seen as settled law prior to the rise of the revisionist pseudo-scholars. Levinson article was part of the flood of scholarship that has led to revisionism of the Second Amendment pseudo-scholars which has unsettled nearly 70 years of settled precedent. The pseudoscholars have been like good magicians and directing people’s attention to the wrong thing while they deceive them into making the illusion look real.

But, my reason for disliking the individual right interpretation goes to the two quotes that start here. True “Second Amendment” scholarship goes beyond just the text of the Second Amendment which everyone involved in this game knows comes in two versions:

As passed by the Congress:

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

.As ratified by the States:

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 Pseudoscholarship only looks at the second half of the Second Amendment (“the right of the People to keep and bear arms shall not be infringed”) and tries to neglect the Prefatory clause (A well regulated militia being necessary to the security of a free State). Unfortunately, this has coloured the debate in recent years despite the admonition from Marbury v. Madison that “It cannot be presumed that any clause in the constitution is intended to be without effect”. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. It is wrong that the prefatory text should be treated as mere surplusage according to the original rule for interpreting the Constitution.

The current debate isn’t True Second Amendment/Constitutional law scholarship since that MUST include also the militia clauses from Article I, Section 8 of the US Constitution along with the text of the Second Amendment:

Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power *** To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

These two clauses change the debate and bring it closer to historic reality of how the Second Amendment should be interpreted. When the commentators were saying things such as “The great object is, that every man be armed”, Henry was specifically addressing Article I, Section 8, Clause 16 as the text shows:

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The problem is that if one looks at the Second Amendment in light of Congress’s powers under the Militia clauses, in particular–the power to arm the militia, the individual right proposition begins to wither away. Even more so when seen in the proper historical perspective. Then, needs to add Article 1, Section 8, Clause 12 (To raise and support Armies) to the mix to get the proper meaning of the Second Amendment.

Somehow, the dislike of Standing Armies in the Anglo-American mind has also been neglected in this mix. In the 17th and 18th Century Great Britain and the British Colonies in America, there was a sentiment of distrust of a standing army not under civilian control. In England, this led to the Bill of Rights 1689, which reserves authority over a standing army to Parliament, not the King. The Declaration of Independence lists keeping standing armies during time of peace as one of the grievances. This dislike was far more nuanced in the United States Constitution which reserves by virtue of “power of the purse” similar authority to Congress, instead of to the President. The President, however, retains command of the armed forces when they are raised, as commander-in-chief. This dislike of standing armies heavily flavoured the debates relating to the adoption of both the Constitution and Bill of Rights, which leads to to this question from Elbridge Gerry:

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

The Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.

On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States. Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members as the primary means of providing for the common defense, and the institutional deficiencies of the militia were the subject of bitter complaint.

Fortunately, the Congressional debates regarding the adoption of the Second Amendment are very short and found here. There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, not about personal uses, and widespread support for the proposed Amendment. It became part of the Constitution with the rest of the Bill of Rights on December 15, 1791.

Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power. The proposed Constitution authorized standing armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear.

Thus, the Second Amendment needs to be read as more than just one clause, but within the context of text of the entire Constitution for it to be properly understood. The majority opinion neglected the guide to constitutional construction given by Marbury that “It cannot be presumed that any clause in the constitution is intended to be without effect” and rendered the “prefatory clause” to be mere surplusage, which is far from how a truly “original interpretation” based upon how such a text was understood to be read. This has led to absurdities such as the Chicago v. McDonald ruling which said that a provision relating to Congress’s powers under Article I, Section 8, Clause 16 applies to the states–even though the states do not have these powers granted to them.

It seems to me that there are good reasons for ignoring the Heller-McDonald decisions and reverting to the standard announced by US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:

 

With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

 

Justice William O. Douglas (who was on the Court at the time of Miller) later described the decision as:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Miller addressed Congress’s power over the militia, yet it has been dropped from the current discussion of the Second Amendment thus removing it from the the debate regarding the proper scope of the Amendment.

Ultimately, the right granted by the Second Amendment (and the Third) was supposed to be one that there would be no Standing Army, not for private citizens to own firearms. The Constitution, in particular, the Second Amendment is silent on the issue of non-militia arms. That fact, strips away the concept of “gun rights” as being protected under the US Constitution (although gun rights are found in State Constitutions). Instead, the Second Amendment is a window on a vastly different United States from the one we now live. One in which standing armies were feared.

The Constitution is not to be taken piecemeal, but to be seen as a whole to properly understand it. The individual right concept separate texts from historical background and says that clauses in the constitution are intended to be without effect rendering them mere surplusage. This turns the constitution upon its head by neglecting that there are two concepts that are in conflict here: the State Militias and the Federal Army.

Yet, rather than scream bloody murder this act has been allowed to be perpetrated upon the American public. Justice Berger called this interpretation a fraud upon the American public and the 5 justices played fast and loose with the rules of Constitutional interpretation to distort the constitution. Those who dislike penumbras in the law and government intrusion into the private lives of citizens, yet can tolerate Heller-McDonald need to understand what they have just condoned. For Heller-McDonald has not come from the penumbras, but out of nowhere in violation of the role of judges to be interpreters of the law, not legislators.

Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the “individualist” view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the “collectivist” interpretation, which is supported by history and the pre-Heller-McDonald Supreme Court decisions on the issue: in particular US v. Miller.

The nature of the Second Amendment also does not provide a right that could be interpreted as being incorporated into the Fourteenth Amendment. It was designed solely to protect the states against the powers given to the Federal government under Article I, Section 8, Clause 16, not to create a personal right which either state or federal authorities are bound to respect.

The contemporary meaning of the Second Amendment should be the same as it was at the time of its adoption. The federal government may regulate the body that was called the Militia (now the National Guard), but may not disarm it against the will of state legislatures. Nothing in the Second Amendment, however, precludes Congress or the states from requiring licensing and registration of firearms; in fact, there is nothing to stop an outright congressional ban on private ownership of all handguns and all rifles.

See:

THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Founders’ Constitution:

Article 1, Section 8, Clause 12

Article 1, Section 8, Clause 15

Article 1, Section 8, Clause 16

Second Amendment

Amendment Three

House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749–52, 766–67

Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)

Schwoerer, Lois G. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England

(OK, I am reposting this from MikeB’s Blog, but it’s my post and I can do that!)

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