The Second Amendment Does Not Transcend All Others

Part of the miserable ritual that follows American mass shootings is the lament that nothing can be done unless we get rid of the Second Amendment. New York Times columnist Bret Stephens reasoned thus:

There’s a good case to be made for owning a handgun for self-defense, or a rifle for hunting. There is no remotely sane case for being allowed to purchase, as [Las Vegas mass murderer] Paddock did, 33 firearms in the space of a year. But that change can’t happen without a constitutional fix. Anything less does little more than treat the symptoms of the disease.

The pro-gun side echoes this claim of textual determinism. My colleague James Fallows, writing on Monday, quoted a correspondent who is a “famous novelist” as saying, “the Constitution trumps (if you’ll pardon the expression) all prudential or policy considerations. It makes them utterly irrelevant.” Justice Clarence Thomas, as I recently wrote, makes the same claim—that the text of the amendment and the Supreme Court’s case law create a “fundamental right” that is violated by a ban on assault weapons, a waiting period for gun purchases, or limits on high-capacity magazines.

As a statement of what the law is, this is flat wrong: The courts have not, to date, interpreted the Second Amendment beyond the right of (in Stephens’s phrase) “owning a handgun for self-defense,” and, in fact, of owning that handgun in the home. “[W]e hold,” the Court wrote in Heller v. District of Columbia, “that [D.C.’s] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Justice Scalia’s opinion set out careful limits:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

So throwing up our hands and proclaiming that we can’t move forward without a “constitutional fix” is a flawed response; so is responding to gun-control proposals with outlandish claims of constitutional protection. We have the Second Amendment; rather than engage in loose talk, we should look at its text carefully:

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.

In Heller, Justice Antonin Scalia divided the amendment into a “prefatory clause” (“militia”) and an “operative clause” (“right to keep and bear”). Then, drawing on statutory interpretation texts, he announced that the “militia” language expressed the amendment’s purpose, but that “a prefatory clause does not limit or expand the scope of the operative clause.”

It’s not clear to me that that’s a rule. Statutory interpretation is a useful constitutional tool, but constitutions aren’t statutes, and a one-sentence amendment isn’t a statute with a separate “preamble.” The “militia” clause is an “absolute phrase”; in grammatical germs, it modifies the entire sentence to which it is attached. I am not sure that I think “modification” can never contain “limitation.” It seems to me—as even Scalia wrote—that the words mean “Because a well-regulated militia is necessary etc., the right of the people etc. shall not be infringed”—and that the second part of the sentence doesn’t float very far away from the first.

So let’s agree that the language of the amendment points our attention pretty strongly in the direction of the militia. But that doesn’t resolve the matter; and again, if we were buying a used car, we would read the whole document—that is, in this case, what Justice Neil Gorsuch calls “the arcane matter of the Constitution.”

That contextual reading is quite enlightening; it strongly suggests to me that the main—indeed, almost exclusive—purpose of the amendment was, in fact, to protect the rights of states to maintain and arm militias. There’s certainly enough evidence to support an argument for some reference to personal possession—but no convincing proof that personal possession was the main focus, or that personal possession was intended to be unqualified.

That reading makes sense in a larger context—that of the constitutional situation at the time of the Philadelphia Convention. Of all the changes the new Constitution made in the relations of state and nation, the new central government’s arrogation of power over the militia was the most radical single feature of the new system.

Under the Articles of Confederation, from 1777 on, states were required to maintain their own “well regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.” The states would appoint all officers under the rank of colonel. The confederation Congress was permitted to “requisition” these militias for the “common defence,” but only “in proportion to the number of white inhabitants in such State.” If other states didn’t furnish their share, Congress could ask complying states for more than their proportional share—but the state legislature was guaranteed the power to refuse, even in an emergency. And even when the militia was under federal command, the state legislatures would choose replacement officers as well.

The states were further protected by remarkable supermajority rules: Unless nine states out of 13 agreed, Congress couldn’t declare war, raise an army, or even appoint a “commander in chief of the army or navy.” Even if the nation was invaded, five states could stop any military response; even if the other eight agreed, they would not even be able to appoint a commanding general, much less march against the enemy.

All told, the arms and the military power remained solidly in state hands, with the confederation government taking over only in the direst circumstances, and after humbly asking the states for permission.

In the Constitution of 1787, by contrast, the federal government would control virtually every aspect of war, peace, and military structure. The new Congress could declare war, raise an army, or both, by a bare majority and without consulting the states; Congress was in charge of training and arming the state militias, and could call the militia into service without state permission or even state consultation.

And no more veto over the commander in chief—who would be, by law, the president.

The sole remnant of the states’ power over their own militia appears in Article I § 8 cl. 15, which ended by “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” And in case there was any doubt about what the federalized militia might be up to, the Constitution provided that it could be called into service “to execute the Laws of the Union, suppress Insurrections and repel Invasions”—that is, perhaps, to march into any state, including its own, to bend its people to the federal will.

All told, the text lays out a stunning power grab. To much of the revolutionary generation, a standing army was the mortal enemy of freedom and self-government. Those ratifying the Constitution had vivid memories of red-clad professional soldiers—some speaking German—swarming ashore to enforce British tax laws, and then to try to crush the Revolution. Now a new government—without so much as saying “by your leave”—could create such a force at pleasure, and send it, and their own militias, to crush any state that did not obey federal ukase. That must have raised hackles from Lexington to Savannah.

That’s the context. To me it suggests that, in adopting what became the Second Amendment, members of Congress were attempting to reassure the states that they could retain their militias and that Congress could not disarm them. Maybe there was a subsidiary right to bear arms; but the militia is the main thing the Constitution revamped, and the militia is what the Amendment talks about.

I’ve devoted years of my life to studying such ideas as the “original understanding” or “original public meaning” of constitutional provisions. No matter what anyone tells you, no one (and I certainly include myself) can really know the single meaning of any part of the Constitution at the time it was adopted.

Anyone who claims that the text of the amendment is “plain” has a heavy burden to carry. The burden is even heavier if an advocate argues that the Second Amendment was understood to upend laws against concealed carry or dangerous weapons—both of which were in force in many parts of the country long after it was adopted.

So it may be that the amendment’s text supports something like where we are now: Dick Heller, a law-abiding citizen, can own a handgun in his home for self-protection. The text and context, however, don’t point us to an unlimited individual right to bear any kind and number of weapons by anyone, whether a minor or a felon or domestic abuser. That would be a right that, if recognized by the courts, has the potential to disrupt our society at a profound level; a right that, as Fallows’s correspondent blithely asserts, renders the damage of gun violence “utterly irrelevant.”

There’s no other such right anywhere in the Constitution. To prove that the Second Amendment transcends all others, the proof would have to be damned strong. I haven’t seen it yet.