In an old blog post I argued that the Second Amendment created three constitutional rights. “One is a right to participate in the military, in Latin jus militiae, from its origin in Roman law. The second is a right to possess weapons for the purpose of the participation in the militia, [now the National Guard] guaranteed by the first right. The third is a broader right to possess weapons unrelated to matters military.” The Second Amendment: Not One or Two but Three Rights I was mistaken.
No right
to carry weapons
What I did not,
and still do not, think is protected by the amendment is the right to carry
weapons, whether open or concealed, except as reasonably incidental to the
right to keep weapons. “Bear arms” is all about the militia.
“Arms”
by itself has, and had in the late 18th century, a strong military
aroma. Kitchen knives could be “weapons” but hardly “arms.” Revolutionary war
“arms” included canons, muskets, rifles (few, non-standardized), grenades
(lighted fuse), helmets (few), tomahawks, swords, and bayonets (standard for
British fewer for Americans.)
To
“bear” is and was to display, carry, or endure. It was a word not often used except
in special contexts, usually conveying some sort of seriousness or solemnity.
“Bore the medal,” “bore the uniform,” “bore the casket,” bore the sorrow.” “Bear
the salt to the table” would be uttered only if levity were afoot. To say “he
bore a tomahawk home” would be understood, but aberrant, at best.
The
seriousness, of “bear” made it particularly fitting to be joined with “arms” to
form the phrase “bear arms” meaning to participate in a military or
quasi-military or to engage in military hostilities.
Scalia
insists, against the detailed discussion of historical linguists submitted as a
friend of the court brief in District of Columbia v. Heller (2008), that
“’bear arms’ means, as we think, simply the carrying of arms:” Scalia attempts to refute
the linguists’ long list of founder period instances of “bear arms” meaning
military participation. This he calls the “idiomatic meaning.” He contends that “Every
example given by petitioners’ amici for
the idiomatic meaning of “bear arms” from the founding period either includes
the preposition “against” or is not clearly idiomatic.” He did not include in
his opinion these “not clearly” military cases, so that we could make a
judgment whether to agree with his judgment or that of the linguists.
There is a handful of instances in the Heller opinion’s tenth
footnote, alleged to be uses of “bear
arms” meaning “carry weapons.” Two instances were over a century before the
drafting of the amendment, not exactly the founding period. Three were of
Scottish or Irish provenance. (Scottish English seems particularly likely to
differ from American or even English usage, especially for “bear.”) There is no
American or even English example in the footnote within the generation of the
First Congress. Indeed, only one was from this continent at all.
That one, a Kentucky commentary on the Second Amendment, does
not use the word “carry” or any synonym. Instead, it states that the amendment
does not protect from a criminal charge those “who exercise this right in such
a manner, as to terrify people unnecessarily.” A Kentucky prosecutor would
surely have cited this commentary in defense of criminal charges against a
militia detachment or gang of rogue militiaman for burning down the homes of
native American “squatters” on the frontier. No weapon need be involved.
Scalia’s equating the “bear arms” to “carry arms,” is
strongly contrary to the evidence as to the way “bear arms” was used in 1791. “She decided not to
bear arms home because they were too heavy” or “Please bear arms on our walk by
the river this evening” would have been at least as bizarre then as they are
now. “Carry arms,” which for Scalia equates to “carry weapons” would be an
implausible reading of the amendment’s “bear arms,” even absent “A well
regulated Militia, being necessary to the security of a free State” in the
presence of that ablative absolute preface, it is impossible.
Therefore, Bruen
vs New York State Rifle & Pistol Ass'ny (2022) was
wrongly decided. The amendment does not constitutionalize a general individual
right to carry weapons around.
Jus miltia
The
overwhelmingly more common meaning, if not in fact the only extant meaning, of
“the right to bear arms” in 1791 American English was the jus militia (of Roman law) –right of participation in a military
organization. That it was worth the effort to recognize this as a right may be
surprising today. Couldn’t anybody join the army or navy or the Virginia
militia, or almost anybody? Memory at that time, however, ran back to the
history of private militias and, in particular, to the Trained Bands of England,
open to membership only for those who shared the politics of the organizer. Participation
was to be a right of the people not only of some people. (We know, of course,
that few of the southern Congressmen and ratifiers thought those of African
descent to be full-fledged Constitutional people.) The proposals and early
drafts, by exempting conscientious objectors from militia service (Quakers,
anabaptists), make it clear that “bear arms” was about the right of militia
participation (and the fear that the right would morph into a duty, even for the
objectors.) (For details see the “To bear Arms” subsection of section 1 of The
Second Amendment: Not One or Two but Three Rights
(lawrencecrocker.blogspot.com))
Not
only could one carry weapons without bearing arms, one could bear arms without carrying
a weapon. (Even the Continental Army had clerks.)
Possession
What I am have
second thoughts about is the general (not militia related) right to keep
weapons. My defense of this was based on the speculation that most of the
ratifiers would have understood “the right of the people to keep and bear
Arms as giving them the right to keep weapons whether or not they had
anything to do with their state’s militia.
I
still think this was probably the expectation of many of the ratifiers and possibly
even some Congress members. I did not face head on the fact that whatever
expectations of this sort there may have been were the result of misreadings of
the text. A risk of legislatively enacting written documents is that some of
those doing the enacting may think that the text says something other than what
it does say.
Democratic
theory mandates that only the meaning of the enacted text matters, not the
expectations or intentions of those whose votes turned it into law. Intentions
and expectations are often difficult to extract from the historical record. An
individual’s expectations and intentions may be vague and are certain to be
incomplete. Two legislators, both voting “aye” may, may have very different,
even contradictory expectations. The evidentiary problems with intentions and
expectations are not the key point, however. The key point is that intentions
and expectations were not voted upon and turned into law. Only the text was.
If it were “. . .right of the people to keep arms . . . “
If
the words “and bear” were absent”, the amendment would, indeed, have been best interpreted
as constitutionalizing a general, individual right to keep weapons. The word “arms”
would have been badly chosen, but that sort of thing happens in hasty
redrafting before an upcoming vote in Congress. On this thought experiment, the
here would be two different rights to keep weapons by dint of the militia prefatory
clause. For those militia eligible by age, gender, fitness, (race), there would
be a presumption giving constitutional protection to some combat-appropriate
weapons: muskets, maybe rifles (parts and training problems), conceivably
grenades, certainly not canons, as specified by reasonable muster orders. This possession
right of the militia eligible, would be than the right of the of the general
population. Delaware might have banned possession of bayonets except for the
militia eligible, but all would have a right to a fowling piece.
Factoring in “bear arms”
That
“arms” was part of an indissoluble two-word phrase focused on the militia makes
it a little harder to read “keep” as a general individual right to possess
weapons. We can understand when a word is pulled out of an indissoluble phrase
to serve a second and different function, but it is grammatically odd. Consider:
“He killed time, the bottle and three mosquitoes.” You would not be shocked if
I told you Mark Twain wrote this, although, as a matter of fact, he didn’t. Scalia’s
example is, “He filled and kicked the bucket.” These are modestly humorous precisely
because they play fast and loose with semantic/syntactic rules.
Scalia’s
“carry weapons” interpretation avoids the problem but at the cost of reading
the militia clause out of the amendment, ignoring that it is “arms” not “weapons,”
and, as just discussed, running contrary to the usage evidence, the experts,
and the draft history.
Let’s
look at three possible readings:
S: People have a right to possess weapons and to
carry weapons around.
M: People have a right to join the militia and
to keep arms appropriate for that purpose.
C: People have a right to join the militia and to
keep arms appropriate for that purpose and people have a right to keep weapons.
(Scalia,
Militia, Combined, as having elements of both M and S.)
When
“bear arms” is interpreted as it must be, S drops out as a possibility.
That leaves us with some level of syntactic/semantic incongruity with respect
to the Janus-like function of “arms.”
Phrases,
especially elegant phrases that roll off the tongue, can acquire immunity to critical
examination in the course of the drafting process. The Conventioneers and the
First Congress seem to have been susceptible to this infirmity. In addition to “keep
and bear arms,” we have “high crimes and misdemeanors,” “respecting the
establishment of religion,” “a capital, or otherwise infamous crime,” “cruel
and unusual punishment.” These, among other sonorous phrases of the
Constitution, have led to disproportionate interpretational conflict down the
years.
That
a nice phrase might bend syntax/semantics a tad ought not be shocking. It is
telling that “bearing arms” was used in proposals and drafts for what became
the Second Amendment that were unquestionably militia centered and where “bearing
arms” certainly did not mean carrying weapons around. In concatenating “keep”
with “bear arms,” framers doubtless thought that everyone would understand,
even if the new phrase played a little fast and loose with grammar.
It
is important, however, that M is less fast and loose playing than is C.
This is among the reasons that I now conclude that M is the better
reading, even though I continue to suspect that the drafting probably led some
ratifiers to believe that it established a general individual right to possess
weapons.
The
Anti-dead-hand principle
I am also positively
influenced by the fact that M is weaker than C and far weaker than
S. So M loosens the dead hand’s grip on legislation centuries
later.
A committed
democrat is required, at least as a first approximation, to prefer among
plausible readings, that interpretation of an entrenched constitution that least
restricts future democracy.
(There may be
an exception for principles so fundamental that they properly could be imposed
on even the most democratic of democracies by brute force. The 13th
Amendment is a paradigm candidate. Even these exceptions should not be read to
make them the best they can be, but only good enough that nothing better should
be imposed upon the democracy by said brute force. See the last several
paragraphs of Jefferson Davis and the Moral Right to
Abolish Slavery (lawrencecrocker.blogspot.com)
The Right
A good deal
of the Bruen reasoning turns on “the right” of the Second Amendment,
which the Court says is to be elucidated by looking to “the Nation's historical
tradition of firearm regulation.” This is a slight reworking of Scalia’s
favorite way of putting his finger on the scales when the text didn’t give him quite
the answer he wanted. Scalia’s phrase was “traditions of the American people.”
I have not
confirmed that the Boston ordinance against possession of a loaded firearm in
the city was still on the books as of 1791. The slave codes of the southern,
and some not so southern states at the time the Second Amendment was ratified prohibited
a substantial percentage of the people from keeping arms. (How would Congress
have voted on the Second Amendment had, say Madison, argued that “the people
whose keeping of arms is guaranteed by this Amendment are all the people,
whether counted in the census as five fifths or three fifths”?)
Safety
One thing
that is clear about the rights set forth in the Bill thereof was that they were
inherently limited by considerations of justice and safety. There was in 1789
no law on the subject so far as I know, but the Supreme Court was surely
correct many years later in arguing that the First Amendment’s “freedom of
speech” did not extend to protecting the shouting of “fire” in a crowded
theater.
We know that even
the current Supreme Court, doubtless the most NRA-friendly Court ever, must recognize
that safety considerations constrain “the right of the people to keep and bear
arms.” Had there been no law prior to 1939 within “Nation's historical
tradition” against throwing explosives, I yet doubt that the Court would so
much as deign to hear a challenge to the National Firearm Act (of that year) as
applied to prohibit the possession of hand grenades.
Normative expressions
Taking safety
into account in delineating the Second Amendment right brings front and center
an interpretive principle that I think of crucial importance, a principle that may
seem to conflict with the anti-dead-hand principle. It focuses on provisions
containing clearly normative words and phrases: “reasonable,” “cruel and
unusual,” “due process,” “right.’
My contention
here is straightforward. For example, the due process clauses of the 5th
and 14th Amendments do not constitutionalize all and only the
process that was thought to be due in 1791 or 1868. The framers could have been
written “due process as traditionally understood” or added a sentence “Due
process requires . . .” But they didn’t.
The text mandates due process, and the judiciary’s task is therefore to
determine, as best it can, what process really is due.
This can lead
to results wildly different from those of originalism understood in terms of
framer or ratifier intentions or expectations, or “the Nation's historical
tradition” but it follows directly and necessarily from the axiom that the original
meaning of the text controls. To take the text seriously is to take normative
words as normative, not as disguised descriptions of the beliefs of forebearers
or framers or of a tradition. The members of the First Congress would have
thought capital punishment not cruel and unusual for a wide range of offenses
including horse stealing. Probably the majority, however, would have thought it
cruel and unusual to lock someone up for ten years. Tradition.
Textualism rigorously
understood then has some resemblance to “growing” or “living” constitution
theories. If the Court determines that due process requires more than it once
was thought to, then the Constitution may look as if it is changing. The
Justices, however, will typically say that this is what the text required all
along. Opinions written in this fashion are at least purporting to use the
right interpretive method. (Whether they really are is another matter.) So,
this understanding of normative words and phrases in the Constitution does have
some potential to loosen the grip of the dead hand.
(The grip is
shifted, however, not to Congress, but to the unelected federal judiciary,
which may or may not instantiate best values. Whatever it does, it does not do
it democratically. That is the system we are stuck with, however, having an
entrenched constitution and strong judicial review.)
The
resolution of any apparent conflict between the two principles, anti-dead-hand
and taking normative provisions normatively, is that the latter is lexically
prior. If taking the normative word or phrase seriously requires interpretation
a and rules out interpretation b, then, then b is not a
candidate for the final interpretation, even if it is less restrictive of
future democracy. The anti-dead-hand principle only breaks ties. It does not overcome
the meaning of clear text.
If there were
a general, individual right to possess weapons
Even on the
Court’s view that there is a general, individual, private right to keep
weapons, the militia prefatory clause makes it perfectly clear that this
general right is less stringent than the special right of the militia eligible
who might be required to muster with their own weapons. In today’s world that might
possibly constitutionalize the possession of assault rifles or shoulder fired
rockets by such individuals.
However, pursuant
to laws and regulations governing units of the National Guard and its predecessors,
there have not been any bring-your-own-guns militia members for over two
hundred years. So, on the mistaken view that the Second Amendment constitutionalizes
an individual right to keep, and even to carry, weapons, it is still inconceivable
that it would override reasonable safety considerations or would void statutes prohibiting
possession of weapons of mass slaughter. See Conjectures
& Arguments, Philosophy & Law: The 2nd Amendment Right to the Open
Carry of Swords and Shoulder Launched Missiles .
Other posts on the 2nd, not referenced above, which I still stand by, mostly: The Purpose of the Second Amendment Failed Long Since (lawrencecrocker.blogspot.com); The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles (lawrencecrocker.blogspot.com) Guns don’t kill people, true -- in exactly the same way ricin and hand grenades don’t kill people. (lawrencecrocker.blogspot.com)
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