Wednesday, March 19, 2008

How the Court Should Decide Heller (Part One)

Having stated my thoughts on how Heller will be decided, allow me now to put forward my thoughts on how it should be decided.  Considering that every law blogger  more qualified than I to offer views on the subject has done so, this is something of an act of intellectual vanity. But of course law blogging is always a bit about intellectual vanity anyway (and besides, someone actually requested my view on this). So, surely I am compelled not to withhold my opinion on the matter.

As you know, the Second Amendment reads

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.

Of course, in Heller the Court is confronted with the threshold question of whether this language applies to individual challenges to firearm possession restrictions at all; that is, whether the Amendment protects an individual right or merely the rights of states to require their citizens "to keep and bear arms" in preparation for military service.  The collective rights interpretation faces a couple of serious problems that quickly apparent to a reader of the Amendment.  First, it is undisputed that of the eight amendments in the Bill of Rights that clearly address protections against federal power (ie. excluding the Ninth and Tenth Amendments) the provisions in the other seven have all been held to protect individual rights. (n1)  Taking this in combination with the indisputable historical character of the Bill of Rights as a vehicle for protecting individual liberties leads to an assumption that a provision in the first eight amendments should be considered to protect individual rights unless other contextual factors show otherwise.

Closely related to this general presumption, the second immediately apparent problem faced by proponents of the collective rights reading is the Amendment's use of the phrase "the right of the people."    The exact phrase "the right of the people" also appears in the assembly clause of the First Amendment ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble. . . .") and in the first sentence of the 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. . . .").  Both provisions have been deemed, correctly, to confer individual rights (despite the reference to "the people" as a whole).  It is difficult to see why this phrase refers to individual rights in the First and Fourth Amendments but means something very different in the Second Amendment.  Indeed, the phrase renders a collective rights reading of the Second Amendment strained at best: if the Second Amendment protects the rights of the states, why doesn't actually it refer to the states instead of "the right of the people"? (n2)

Advocates for the collective rights theory concede (though implicitly) that their reading of the "operative clause" of the Second Amendment is unnatural, but claim that the first part of the text -- the "militia" clause -- modifies the second part, restricting the meaning of the Amendment to protecting the right of states to require individuals in their militias to prepare for military service by keeping and bearing arms.  But this proposed reading simply doesn't square with the phrase "the right of the people" in the operative clause.  Moreover, it is fairly clear from the linguistic context that the word "militia" was used in a broad sense, referring to all able-bodied men in the population, who might be obligated to defend public security.  In modern usage an equivalent of that sense of "militia" would be the word "citizenry."   As a theoretical exercise, replace the word "militia" with the word "citizenry" in the text of the Amendment; when one does so, it becomes clear that the "militia clause" argument falls flat. (n4)

Collective rights proponents might be able to overcome these face-of-the-text problems if they could offer strong historical evidence that prior to the enactment of the Second Amendment Anglo-American law rejected the concept of an individual right to possess firearms. (n3) As was revealed in the Heller oral argument, however, the evidence available on the point favors the individual rights side.  The English Bill of Rights of 1689 guaranteed Protestant subjects a general right to have arms, and Blackstone recognized in his Commentaries (first published in the 1760's) that English law protected an individual right to bear arms.  There is little-to-no affirmative evidence that this view was not shared in the pre-revolution American colonies and post-revolution states.  To the contrary, as Justice Kennedy pointed out in his questions during oral argument the individual possession of firearms was a practical necessity for many frontier residents.  Even in urban areas there were few, if any, broad prohibitions on individual ownership. (n5)  Everything indicates that American common and statutory law was, at the least, no less protective of an individual right to own firearms than English law.

Considering the language of Second Amendment as compared with the text of the other amendments in the Bill of Rights and the nature of the Bill of Rights generally, as well as the supporting historical evidence of a strong Anglo-American recognition of an individual right to bear firearms, the overwhelming weight of the contextual evidence points to the conclusion that the Second Amendment grants to individuals some kind of constitutional right to possess firearms.  In Part Two I'll discuss what sort of restrictions on firearms possession the federal government can constitutionally impose and examine the validity of D.C.'s provisions.


n1 This includes even the Establishment Clause, which the Court has concluded -- despite little supporting history for the notion -- grants an individual right.

n2   The framers were clearly able to differentiate between the two.  The Tenth Amendment reads:

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.

n3  As I'll explain in a lot more detail in the near future, I consider myself a rich-text originalist, meaning that I think a court must examine and weight the evidence about the original contextual framework of a term or phrase in the Constitution in a sort of "totality of the (original) circumstances" manner.

n4  It has also often been noted that, even by the standards of the 1780's, the Second Amendment is rather oddly punctuated. However, I haven't heard or read any really persuasive argument from either the collective rights side or the individual rights side that the placement of the commas is vitally important.  To my eye, all the commas except the one between the militia and operative clauses (ie. just before "the right of the people") are essentially superfluous, and in any event not enough to outweigh the other interpretive evidence.

n5  As I'll discuss in Part Two, there were some restrictions in English and American law exempting some categories of people from owning arms and restricting the manner in which they were stored and used. However, there is little doubt that the general rule was that individuals had a right to possess arms.

No comments: