Taking the Second Amendment Seriously
Finally, and for good reason, a gun control statute has been struck down as unconstitutional.
Jul 24, 2000, Vol. 5, No. 42 • By NELSON LUND
The Fifth Circuit heard oral arguments in the government's appeal of Cummings's decision on June 13. The session featured a number of humorous exchanges, including comments by the judges about their own personal arsenals, and an embarrassing display of ignorance by the government's lawyer about the statutory definition of the term "militia." But the most promising aspect of the argument was how little interest the judges showed in joining the many other courts that have treated the Second Amendment as a kind of enemy alien within the Bill of Rights.
Though it is always dangerous to predict what courts will do on the basis of judges' questions at oral argument, the following possibilities seem most likely. The court may simply avoid the Second Amendment issue by holding that the 1994 Violent Crime provision exceeds congressional authority under the Supreme Court's recent federalism decisions. Another way of avoiding serious Second Amendment questions would be to dismiss the indictment of Emerson on the ground that the federal statute includes an implied limitation to cases where there has been a judicial finding of dangerousness to the "intimate partner" or child. But it is also possible that the Fifth Circuit will conclude Cummings was right, and that the statute violates the Second Amendment.
If the court goes down this last road, the Emerson case could be headed for the Supreme Court. And whether in this case or some other, the Supreme Court will eventually have to decide whether the Second Amendment is going to remain in the Constitution. It is therefore worth understanding why expunging it would require a level of sophistry and willfulness on a par with such disastrous instances of high court usurpation as Dred Scott and Roe v. Wade.
For much of the twentieth century, there were two schools of thought about the meaning of the Second Amendment. Virtually the entire legal establishment, from the professoriate to most appeals courts, asserted that it protects only the right of state governments to maintain military organizations like the National Guard. On the other hand, people who read English in the normal way thought that it protects the right of individual citizens to keep and bear arms.
If the framers of the Second Amendment had simply provided that "the right of the people to keep and bear arms shall not be infringed," even a lawyer would have trouble denying that it creates an individual right like the other "rights of the people" described in the Bill of Rights. But that's not what they did. Instead, they appended an explanatory introduction, so that the constitutional text says: "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 introductory phrase, however, does not change the meaning of the operative clause, and the Second Amendment means exactly what it would have meant had the preface been omitted. To see why that's so, and also why such an explanatory preface makes perfect sense, one needs to grasp two interrelated arguments. The first is based on the text of the Second Amendment and its relationship with other clauses in the Constitution. The second focuses on the immediate political problem that the preface was meant to address.
Let's start with the text of the Second Amendment. The operative clause protects a "right of the people," which is exactly the same terminology used in the First Amendment and the Fourth Amendment. Those two provisions indubitably protect individual (not states') rights, and so does the Second Amendment.
What the introductory phrase tells us is that this individual right is protected, at least in part, because doing so will foster a well-regulated militia. Before asking how it can do that, it's worth emphasizing what the Second Amendment does not say.
It emphatically does not protect the right of the militia to keep and bear arms. The people and the militia were and are two very different entities. Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well-regulated militia, or that a well-regulated militia is sufficient for the security of a free state.
Nor does the Second Amendment say that the right of the people to keep and bear arms is protected only to the extent that such a right fosters a well-regulated militia or the security of a free state.
In order to see why the introductory phrase cannot be interpreted as qualifying the right of the people to keep and bear arms, one need only consider the Patent and Copyright Clause, which is the Constitution's nearest grammatical cousin to the Second Amendment. That clause gives Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."