2d amendment

[David Yassky]

I am hoping participants in the Second Amendment discussion can clarify
some of the terms used in the discussion -- specifically "individual
right" and "states' right."

When Eugene (or anyone else) says that the Second Amendment establishes
an "individual right" rather than a "states' right," is that a claim
about standing (i.e., the ability of individuals rather than states to
assert the right in court) or about the content of the right?

If it's a claim about standing, then it's certainly correct, although it
doesn't go very far.  Of course individuals can challenge laws under the
Second Amendment (just as they can challenge laws under the Tenth
Amendment or the "separation of powers").

That says nothing, however, about the scope of the right -- i.e., what
counts as "bear[ing] Arms".  I take it that the "individual rights"
position is that any gun ownership by an individual, for any purpose,
counts as "bear[ing] Arms."  (I am not suggesting that the "individual
rights" proponents see this right as unlimited -- most of the "individual
rights" articles I have read acknowledge the legitimacy of, for example,
laws prohibiting felons from carrying guns.  But the basic position is
that an individual owning a gun for purposes of self-defense, hunting or
recreational shooting is engaging in an activity protected by the Second
Amendment, just as criticizing the government on the street corner is
protected by the First Amendment.)

The "states' rights" position, then, is that "bear[ing] Arms" means gun
ownership related to militia service -- and excludes other gun ownership
(just as obscenity and fighting words are not protected speech).

Now, even if you take that position, you might wind up with a pretty
broad right -- by, for example, saying that all Americans are part of an
"unorganized militia" and need guns for that purpose.  (I take it that
Eugene suggests such an argument with his reference to Anti-Federalist
proposals to define the militia as "'includ[ing] the body of the People
capable of bearing Arms' ... and not just a small subset.")  But you also
might wind up with a pretty narrow right, if you believe, as I do, that
the historical disappearance of anything the Founders' would have
recognized as a militia has constitutional significance.  Either way, the
debate would be about what counts as militia service (both then and now).

I guess my questions are: (1) Am I right that the "individual rights"
claim is about the scope of the right and not just about standing?; and
(2) Is the claimed "individual right" based on the
Americans-have-a-right-to-guns-for-any-reason argument or the
Americans-have-a-right-to-guns-by-virtue-of-membership-in-an-unorganized-m
ilitia argument?

(I should say, in case it isn't obvious, that I support the "states'
right" position -- although I get there by a route that might be a little
different from some of my co-"states' righters".  I argue, in a piece
forthcoming in Michigan Law Review, that (1) the Founders meant (only) to
protect militia-related gun ownership; BUT (2) Eugene and others are
right to say that the Founders thought pretty much everybody (at least
everybody who counted, in their eyes) was part of the militia; BUT (3)
the Fourteenth Amendment effectively repealed the Founders' protection of
state-based militia, SO THEREFORE the Second Amendment right should be
read as narrowly as possible.  But again, whatever the merits of that
argument, I think the various strands of the "individual rights" argument
need to be disentangled.)

David Yassky


On Wednesday, October 11, 2000  2:52 PM, Volokh, Eugene wrote:
>
>Date: 11-Oct-2000 14:52:30 -0400
>From: Volokh, Eugene
>To: CONLAWPROF at listserv.ucla.edu (CONLAWPROF)
>Subject: RE: 2d amendment
>
>        A few thoughts on the recent 2nd Am debate:
>
>        1)  I appreciate Paul Finkelman's concession that Tucker (1803),
>Story (1833), and Cooley (1868-1890s) took a different view from the 2nd Am
>than he does; and I agree that they may in fact have been mistaken as to the
>Amendment's original meaning.  But they're still pretty powerful authorities
>-- it should take quite a bit to persuade us that they were flat wrong (even
>though Tucker was writing 12 years after the 2nd Am was enacted, and Story
>was writing in a time not that long after).
>
>        2)  This is especially so because Tucker's, Story's, and Cooley's
>view of the amendment as securing a right of individuals, aimed at deterring
>government tyranny, is so clearly founded on Blackstone's view of the more
>limited English right; and the Framers, to my knowledge, were quite
>influenced by Blackstone.  The states' right claim is that the Framers in
>1791 described a states' right, even though the (1) "right to have arms" was
>clearly understood by Blackstone in 1765 as an individual
>deterrence-of-tyranny right, (2) was understood by Tucker in 1803, Story in
>1833, and Cooley in the latter half of the century as an individual
>deterrence-of-tyranny right, and (3) was cognate to state constitutional
>provisions that obviously couldn't be states' rights.  That's a very odd
>sort of claim.
>
>        3)  This points to another part of Paul's theory: that I "may be
>right about the state bills of rights" (when I say that they can't create
>states' rights), "but that is a very different argument and issue."  On the
>contrary, it seems to me that it is very much the same issue.  The 2nd Am
>uses the phrase "the right of the people to keep and bear arms."  State
>constitutional provisions enacted before and shortly after use very similar
>(and sometimes almost identical) phrasing.  These provisions in state Bills
>of Rights obviously are meant to constrain the state government, so they
>clearly can't create a states' right (and of course there's other textual
>evidence within them that they don't create a states' right); "people"
>clearly doesn't mean "states" there.  Can it possibly be the case that,
>given this, the very similar wording in the 2nd Am creates a states' right?
>
>                4)  Leslie very graciously suggests that some of the state
>constitutional provisions may have been aimed at protecting "a collective
>right of thre PEOPLE as distinguished from the govt."  I'm not sure this is
>true at least as to those provisions that secure a right of the people to
>keep and bear arms "in defense of themselves and the state" (and of course
>it isn't so as to the 1810s provisions that discuss a right to keep and bear
>arms "in defense of himself and the state") -- I think the "themselves" here
>must mean a right of people individually, not people collectively.  But even
>if I'm mistaken, the distinction, while perhaps intellectually interesting,
>is not particularly relevant, because both Leslie's theory and mine lead to
>the same practical result:  The right prevents the government from disarming
>individual people, and from declaring that only a small group of
>government-approved people may have arms.  So it's still a right that
>prevents the disarming of individuals and that can be asserted by
>individuals (who else can assert it, given that it obviously can't be the
>state government) -- a view that's quite inconsistent with the notion that
>the federal government may disarm individuals so long as their state
>government doesn't object.
>
>                5)  Finally, Calvin Johnson correctly points out that the
>Framers debated whether the 2nd Am should also exempt Quakers from the
>*obligation* to bear arms.  What puzzled me was his claim -- for which I'm
>unaware of any support, either as to the 2nd Am or as to the Pennsylvania
>Right to Keep and Bear Arms provision -- that the "*right* to bear arms was
>a right from which Quakers were exempted" (emphasis mine).  As Joyce Malcolm
>points out, Anglo-American legal thinking recognized both a duty to bear
>arms (cf., e.g., the Militia Act of 1792, which required all adult white
>males from 18 to 45 to have a gun) and a right to bear arms.  But I'm
>unaware of any Framer or other Framing-era commentator who says that the
>phrase "right to bear arms" somehow meant, contrary to the normal meaning of
>"right", only a duty to bear arms, or that the right of the people to bear
>arms was limited only to those people whom the government happened to
>require to bear arms.  So again I ask:  Is there any evidence that the
>Framers did indeed believe that the Quakers lacked a right to bear arms?
>
>                The bottom line:  The notion that the 2nd Am secures a
>states' right seems inconsistent with all the other contemporaneous,
>earlier, and shortly following uses of "right of the people to keep and bear
>arms" and similar phrases -- inconsistent with Blackstone, with the state
>constitutional provisions, with Tucker, with Story, etc.  On the other hand,
>the notion that it secures an individual right aimed at deterring government
>tyranny seems quite consistent with all those sources, and more generally
>with Madison in The Federalist.