The Second Amendment: Not One or Two but Three Rights

I will here argue that the Second Amendment constitutionalizes three 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 guaranteed by the first right. The third is a broader right to possess weapons unrelated to matters military. I do not argue this interpretation because I think it conduces to good public policy. What it does is make good sense both of the operative language of the amendment and its militia clause.

The jus militiae right is not of much practical or political significance in the twenty first century. The right to join the militia, now the National Guard, would presumably follow independently of the Second Amendment easily and uncontroversially from anti-discrimination jurisprudence, chiefly supported by the 14^th Amendment. It is of some theoretical importance that the right implies that the National Guard, in the form of state units, is constitutionally required. Perhaps this could fairly be inferred from the militia clauses of Article II, but that service in the militia is a right of the people puts it beyond all doubt.

The possession rights are obviously a fish of a very different kettle. They are of the greatest practical importance and of intensely partisan controversy. I will argue that Heller is right that there is an individual right of broad scope to possess weapons. The military specific possession right extended, for a time, the dimensions of the general right in favor of weapons particularly suited to military use. That period, however, ended long ago.

My personal view is that it is too bad that there is a general weapons possession right, even if that right is much narrower (subject to more conditions) than what the gun zealots would like to foist upon us. An unfortunate attempt to shore up the militia clauses of the original Constitution, the Second Amendment, failed utterly of its chief original purposes. (See post of 11/20/15 ) Even properly understood, the possession right is a hindrance to common sense measures that would lessen this country's horrific death-by-firearm statistics. The Constitution, however, was not written with your or my policy preferences in mind. The fugitive slave clause, makes that clear enough – to which I would add equal representation in the Senate, and the unamendability of equal representation in the Senate.

The purpose of my exercise here is to set out a different take on the relation of the operative clause to the militia clause and on the conjunction “keep and bear Arms” in the operative clause. The "militia only" construction of the amendment is in large part correct, but so is the "individual right" construction.  My interpretive approach is a form of textualism (for more on which, see post of 6/17/14, especially sections 3, 9, 11).

I. Content of the Rights

“To bear Arms.” The phrases “bear arms” and “bore arms” were, and are, idiomatic phrases the meaning of which involves membership or participation in a military institution or quasi-military group, often with the connotation of involvement in actual hostilities. One could “bear a musket” or “or bear a knife” in that one was carrying it, although, even in the eighteenth century it was much more common to say that one “carried” these things. When the phrases “bear arms” and “bore arms” were used with enough context to be unambiguous, they almost always had the "military participation sense", not the "carry sense."

 

This was the conclusion of the Linguists' Brief submitted in Heller. The textualism, for which Justice Scalia sometimes argued cogently, should have caused him to take seriously a brief subscribed by historical linguists and experts on the English language. Scalia granted that there was an idiomatic use of “bear arms” “'to serve as a soldier, do military service, fight; or 'to wage war.'” He concluded, however, that except in the construction “to bear arms against” “to bear arms” meant, then, and now, to carry them. Here Scalia turned his back on the evidence, as well as the experts.

As to meaning now, consider: “I bear arms in my brief case," “ … in my glove compartment,” “... in my truck,” “ ...in holsters,” “... unloaded,” “... when I go on vacation.” Are these natural ways of talking today? How about the following: “Young man, did you ever bear arms? Yes, when I took my new handgun home on the subway.”

It is not my view that what “bear arms” means now is much evidence for what it meant in the late eighteenth century. Currently, however, the idiomatic sense is clearly dominant. So far as I can tell the colonial, revolutionary period and constitutional period use of “bear arms” was even more closely tied to matters military than it is today.

There are many seventeenth and eighteenth century instances of the use of “bear arms,” “bearing arms,” “bore arms,” that clearly have the military hostilities meanings. Very few seem to have turned up in which the meaning is “carry.” The most important data are the surviving instances of the phrase from the constitutional period and, in particular, from the drafts and debates of the Second Amendment itself. The several proposals and discussions respecting conscientious objection unambiguously use “bear arms” in the military sense.

New Hampshire Constitution 1784:

No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.

Rhode Island's proposed amendment 1790:

That the people have a right to keep and bear arms;... That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

Madison's original draft of the amendment included a conscientious objection clause:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

It would violate long established principles of construction as well as common sense to assign different meanings to “bearing arms” and “bear arms,” in the same sentence.

We know that this idiomatic sense of “bearing arms” was used in the House debate:

Mr. Sherman — Conceived it difficult to modify the clause and make it better. It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other.

The version of the amendment passed out of the committee:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

As passed by the House and sent to the Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

Even for those of us who do not think that framer intent is the key to constitutional construction, it is clear that there was a wide understanding among fluent speakers of American English of the political class that “bear arms” was an idiom meaning military service.

This conclusion is reinforced by the consideration that Scalia's "carry" for "bear" in the conscientious objection proposals would not only have required a shift of the meaning of "bear" within one and the same provision, but would have produced an utter non sequitur.

Consider:

[T]he right of the people to possess and to carry weapons shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

There is no relation between the rights to possess and to carry weapons and serving in the militia. The “but” and what follows it would be entirely unmotivated. So no one who understood the rights grant along the lines of (1) would have attached the conscientious objection clause. If, however, as in (2) and (3), the right includes participation in the militia, there is a point in making it explicit that no such participation would be forced upon the conscientiously opposed. The possibility, particularly in light of the militia clause, that what is constitutionally permitted might become legislatively required could naturally arise in the drafters' minds. 

The utility of a right to participate in militias was illustrated by James II's attempts to undermine the English militias, as well as by some not entirely dissimilar actions of George III towards colonial militias that showed signs of less than complete fealty to the crown.

That there was to be no national standing army was central to anti-Federalist politics, and was accepted, with “if possible” qualification by many Federalists. The latter were then concerned that, absent a standing army, there could be no timely response to invasion or insurrection if states disbanded their militias for fiscal reasons. On the other side, if a standing army did worm its way into permanent being, the anti-Federalists feared that the national government might disband the militias thereby completing a decisive shift of effective power from the states to the central government. A constitutional jus militiae, constraining both the national and the state governments, would militate against both sorts of existential threats to the militias.

“To keep Arms.” “Arms” when the amendment became law, and long before, denoted weaponry and devices to shield combatants against the effects of weapons. There was a very strong, although not inescapable, connotation of matters military about the word. Asked for an inventory of the arms in a house, one would list swords, daggers, muskets, and, if one happened to have them bayonets and war hatchets. One would not include kitchen knives, timber axes, or horse whips, although these were sometimes used as weapons, and it would have been perfectly good English to say, “She was armed with an axe;” or He was armed only with a small kitchen knife.” The presence of the militia clause strongly reinforces the military connotation of “keep Arms.” (Body armor also had long counted as “arms.” There was little of it in use in the late eighteenth, although some cavalry units had brass helmets. But body armor has made a comeback and, I think, has constitutional protection, even if it benefits from no well funded lobby. For convenience, however, I will from now on refer only to weapons, joining the world in ignoring bullet proof vests and the like.)

The long dominant (pre-Heller) interpretation is a perfectly natural one. The right to possess weapons is a right linked to the right to participate in the military and to the importance of a well regulated militia. It is a right of possession of weapons for the purpose of bringing them along to a militia muster. The arguments in favor of the existence of this right are very strong. It is a right uncontroversially regarded as of no current importance, as the militias, now the National Guard, have no need for the private weapons of its members.

That there is a right of this sort does not, however, exclude that "right to keep" established, as well, a more general right to weapons possession. Why do I think that the amendment recognizes such a right? In the end, because I just can't get around the language "right of the people to keep and bear Arms shall not be infringed."

A month after the completion of the ratification process, a veteran of the Revolutionary War, having sustained a leg injury that makes long walks painful, is approached by a federal marshal who demands that he turn over his musket pursuant to a new law passed by Congress. (I know that nothing like this happened and that “gun grabbing” is extremely rare as a matter of historical fact, however much it may now be blamed for the rise of Hitler, Stalin, Mao, and the fall of the Roman Empire. Still, please bear with me.)

Mightn't said veteran have remonstrated, “What about that amendment I voted to ratify?” The marshal might have responded: “The right of the amendment is one “of the people” as collected together and represented by the state. Your state has a right to keep muskets in an armory; you have no possession right.”I will say more about the “right of the state” theory shortly. Better for the marshal to have relied upon the existence of militia specific individual right: “You do not meet the conditions of the right because your war injury makes you militia ineligible."

I think the reasonable expectations of this hypothetical ratifier, stemming directly from the text, would be frustrated. "To keep" is there in black and white, as is "of the people." Perhaps some on the committee or voting on the floor of the House or the Senate intended this keeping to cover only militia appropriate weapons to extend only to the militia eligible, but, if so, they had an obligation to make that clear in the language of the amendment.

In addition the "shall not be infringed" suggests that the right is not an entirely new and highly technical right established by the amendment itself, but rather a right with which the general public would already have had some understanding. The militia specific possession right was not only new but esoteric. To instruct a ratifying voter on just what persons could directly claim the right and what weapons were given constitutional protection would have required some careful explanation. You will find no such explanation in any debate, newspaper article, or pamphlet of the time. Even were there some such, the proper place for such explanation would have been the text of the amendment to be voted upon. That being absent, a fluent speaker of eighteenth century English was justified in thinking that the amendment protected a right to possess weapons of the (no doubt vague) sense in which an ordinary person would have said "I have a right to keep my sword."

I can almost hear some of my readers remonstrating at this point: “But the militia clause!" An initial ablative absolute of that sort always sets out a significant connection to the main clause, usually a temporal, causal or quasi-causal one. Here it clearly is of a “because” sort, and so the content of what follows must be interpreted so that the militia clause would function as an explanation.

I accept this. First, as already set out, I take the militia clause to support the jus militiae understanding of “bear Arms” and to imply that this particular jus relates to the militia. Second, I also accept that the militia clause has a bearing on the the interpretation of the arms keeping clause. In particular, when the militia of any state called upon its members to bring weapons with them to muster, or there was a serious possibility that it might do so in the future, then militia appropriate weapons received a special level of protection from the amendment.

Ablative absolutes affect the meaning of the main clause, but they do not overwhelm it.The chief purpose of the Second Amendment was a militia purpose, but the language chosen does not exclude other applications, perhaps from unstated purposes. The public meaning of the text licensed our veteran to think that his fowling piece would not be confiscated.

It is right that the militia clause and the linkage to the right to bear arms imply that the amendment affords a higher protection to militia appropriate weapons in the hands of the militia eligible so long as that serves a militia purpose. That much is supported by the text, and bringing it out is a sound exercise of lawyerly interpretation. What is unsound is to leverage this special militia possession right against the garden variety possession right that the language of the operative clause also naturally suggests.

It is at this point that I should admit that what I have so far treated as two separate possession rights could just as well be thought of as a single general right the structure of which gave special protection for military weapons so long as that was militia relevant. Perhaps this is the better way to see things as a matter of theory. It also might help to quiet your concerns that the language of the amendment does not facially seem to be creating so many rights. Still, separating the special from the general possession right has some dialectical advantages. It communicates quickly how what I am here advocating differs from traditional interpretations.

“To keep and bear Arms.” So, to simplify a bit, the conjunction in the operative clause can be interpreted:

1. To possess weapons and to carry weapons
2. To possess weapons solely for the purpose of serving in the military (militia)
3. To possess weapons, with special protection for military weapons as militia-needed, and to serve in the military (militia)

(1) is Scalia's position for the Court in Heller. (Possess arms is a holding of the case, and carry arms is dictum.) (2), with variants, is the chief interpretation among critics of Heller. (3) is the interpretation for which I argue.

The substantial incompatibility of (1) with the language of the text I have already discussed. I have not directly criticized the way Scalia all but ignored the militia clause. That this constituted a major departure from long accepted canons of interpretation has been argued so often and so ably by so many that I will not try to add to it.

The conjunction "keep and bear Arms" creates one special problem for my interpretation, not shared by (1) and not shared, on first glance, by (2) either. (3)  makes the phrase a little odd grammatically. It makes use of “Arms” in two quite different ways. With respect to the possession phrase, “Arms” is used in its non-idiomatic sense of “weapons.” In the second conjunct “Arms” is an indissoluble part of the idiom “bear Arms.”

Please imagine your eighth grade English teacher fixing you with severe look and pontificating, “You can't do that! It can't be diagrammed!” But of course you can do it. “Many northerners didn't give a damn about the southern slaves, but John Brown, gave a damn, his money, and his life.” “Gave a damn” is an idiom; “(gave) his money” is not, and “(gave) his life” is second idiom. “Gave” is perhaps being a little overworked, but work it does.

It is possible both to borrow from an idiomatic phrase for purposes of a non-idiomatic one and vice versa. “She spun cotton and tall tales.” “He killed time, the bottle and three mosquitoes.” Yes, all of these examples trade on grammatical tension and do so in a way that can be accused of being cutesy. Our framers surely were not trying to be cute. They did, however, favor compactness, which the device facilitates. They also tended to stick with language others had been using, even where, as here, the phrase was not one of long pedigree or familiar to those learned in the law. Better would have been “keep Arms and bear Arms.” Even better: "to keep weapons and to bear Arms. But that doesn't scan as well. The "keep and bear Arms" got started, had a nice dignified sound, and kept being used. 

Going beyond a first glance, interpretation (2) must in the end argue the grammatical point very much as I do for (3) -- at least for all the versions of (2) on which potential members of militias in 1792 had a right to keep weapons.  

II. Holders of the Rights

To come at the question of whether there are individual rights to keep weapons from a slightly different direction, I want to consider who or what holds the "right of the people to keep and bear Arms."

Until a few years before Heller it was the view nearly unanimous across the political spectrum that the Second Amendment enunciated a right of the states or a collective right of the people. As Chief Justice Burger forcefully put it: “a constitutionally-protected individual right to bear arms is “one of the biggest pieces of fraud—and I repeat the word fraud—on the American public by a special interest group that I have seen in my lifetime.” (1991 interview, "MacNeil/Lehrer NewsHour, PBS.)

The jus militiae interpretation of the right to “bear arms” is, however, an individual right. It is not an individual right to carry guns around a la the Heller dictum, but it is a right of military service belonging to the individual (subject, of course, to conditions).

It is not impossible that “of the people” should be understood collectively for “keep Arms,” even if it is understood individually for “bear Arms.” If the semantically double use of “Arms” is possible, then why not a forking interpretation for “of the people”? It is possible, but that really would be a very great deviation from both ordinary speech and the traditions of statutory drafting. There would need to be strong evidence to support such an interpretation.

Before Heller the right holders were understood to be either the individual states, the people collectively, or, in combination of the two, the people collectively as represented by their individual states. Let me consider these in order.

States as right holders. If the right holders are the states, then “the people” in the amendment must mean “the states.” The two phrases do not and did not normally mean the same. The states numbered thirteen, the people somewhat more. Words can, however, sometimes take on special senses within a particular document, and it is to the document that we must first turn.

“We the People of the United States” in the Preamble of the Constitution clearly could not have been rewritten “We the States of the United States” for reasons not only of diction and style but but also reasons of the underlying political philosophy. The other occurrences of “the people” in the Constitution make it clear that the people and the states are not the same as a matter of the constitutional text.

Article I, Section 2:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

First Amendment:

Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is the one case in which, putting the political philosophy to the side, “the states” could coherently be substituted for “the people.” The temptation to think this might be the right interpretation is, however, pretty much eliminated by the next and final amendment of the Bill of Rights.

Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

People collectively as right holders. What about, not the states, but the people collectively as right holders. The crucial case here is the one in which the collectivity but not the individuals belonging thereto have the right. There are some technical issues about the sort of thing such a collection could be. (It can't be a set; sets have elements not rights.) This can all be handled, however.

People can be said to have a right collectively if they can exercise it jointly or by a democratic or other fair-to-all procedure. If New Jersey has a right to possess weapons for use of its national guard units, that would be a perfectly good example of a collective right, and, with suitable contextual preparation, might be called a right “of the people.” It would be a little odd, but not an outright abuse of language.

Textualists who cleave to the collective right theory must argue that the militia clause is sufficient context to support that reading. However, the rights “of the people” in the First and Fourth Amendments are clearly individual, not collective. This seems to me to auger powerfully against a collective right interpretation of “keep . . . Arms” – reinforcing the inference that the right holder ought to be the same as that of the grammatically intertwined “bear Arms.”

Taking the militia clause very seriously indeed is essential for the collective rights theory when it comes to “keep Arms,” but taking the clause with any seriousness at all supports the jus militiae interpretation of “bear Arms” – a clearly individual right.

In addition, I suspect that nearly all collective rights interpreters do recognize that there at least once was an individual right to possess weapons, if a right strictly constrained by the purposes suggested in the militia clause – the arming of the militia. This is exactly what I have been calling the special right (or special right component) to keep arms. It is a highly conditional individual right limited to the militia eligible, militia available, and militia physically fit to possess militia-appropriate weapons of individual use, so long as there is a reasonable possibility that the militia is or will in the foreseeable future be insufficiently equipped in the absence of such weapons. I assume that everyone who thinks that there ever was such a right will grant the theoretical sense in which it continues to exist as a right held by each and every one of us, even if it be nearly two centuries since the final condition was met.

From this perspective, the dispute ought not to be about the existence of an individual right to possess weapons, but only about how highly conditionalized the right is. My view is that those who think the individual right to possess weapons long since became a dead letter have only been mistaken in thinking that the militia related possession right exhausted the purport of the amendment. On my view the amendment's language requires recognition in addition of an individual right to possess weapons for such purposes as hunting, target practice, biathlon, and, yes, (most hazardous of all) self defense. As a real right, and not merely a museum piece, it comes with conditions and constraints, as do all rights. The most important of these are sensitive to the fact that weapons of the firearm sort are as dangerous as the statistics show them to be.

So the military grade weapons, which once had special constitutional protection, are now subject to more rigorous regulation, or outright prohibition because of their extraordinary dangerousness in the hands of the deranged, of criminals, and of insurrectionists.

The currently popular, NRA underwritten, interpretation of the amendment as giving a right to possess weapons in order to resist or overthrow government (of course only if it proved tyrannical -- in the eyes of the beholder!) has no basis in text. The amendment's lead clause is not: “Privately owned arms, being necessary to protect a free people from tyranny,.. .”

III. Burdened by the Rights

I contend that the Second Amendment originally and directly, that is without the aid of Fourteenth Amendment incorporation, constrained the states as well as the federal government. At least in this respect Barron v. Baltimore was wrong in concluding that all of the Bill of Rights limited only federal power. The Barron doctrine, entrenched as it is, is supported neither by the text of the amendment itself nor by that of the Constitution, as then amended, as a whole. The drafters well knew how to restrict a right to constrain only the central government, as they did with the First Amendment's “Congress shall make no law . . .” That this language was present for the third of the proposed amendments, but none of the next nine would require, under standard canons of construction, that no such restriction be read into the others. This and other arguments that I find persuasive have long been made by critics of Barron.

I will observe, in addition, that if the amendment did not bind the states, then the Federalists would have lost their motivation for supporting it. The states would have been in a position to argue that they could abolish the militias or could have confiscated or prohibited the privately owned weapons then essential to militia preparedness. Were there no standing army, a desideratum the Federalists were, mostly, willing to concede at least in theory, then the country would be ill equipped to meet the fast moving exigencies of insurrection or invasion.

I count these Federalists' intentions for no more than that it was apparently possible for fluent speakers with such intentions to think that the language of the amendment answered to them. The text of the militia clause of the amendment together with the militia provisions of Article II, are themselves enough to show that the amendment bound the states as well as the federal government.

In this limited respect McDonald v. Chicago, like District of Columbia v. Heller, was rightly decided. For the purposes of this exercise, I pass on the question whether these decisions take precedent properly into account. I also would not want to be understood as endorsing either the reasoning of these cases or all their dicta. In particular, I do not think that there is a constitutional right to carry weapons, except as incidentally involved in possessing them. The“dangerous and unusual” dictum of Heller and the few examples of regulations “presumptively lawful” deserved expansion – or better yet case selection that would have elevated them beyond the status of dicta.

The two sides of the debate about the Second Amendment both have it partly right. Regrettably the gun fans are right that there is an individual constitutional right to possess weapons, even if they are wrong about a right to carry weapons and even if the right to possess is far less unconstrained than they would have it.  

 

“The Purpose of the Second Amendment Failed Long Since,” https://lawrencecrocker.blogspot.com/2015/11/?m=0;  "The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles," https://lawrencecrocker.blogspot.com/2016/04/the-2nd-amendment-right-to-open-carry.html. “Guns don’t kill people, true – in exactly the same way ricin and hand grenades don’t kill people,”   https://lawrencecrocker.blogspot.com/2019/09/guns-dont-kill-people-true-in-exactly.html.