2d amendment

[Randy Barnett]

A couple replies to David's thoughtful response.

David writes:

> The people who wrote the Second Amendment (and the citizens whose
> understanding of the Amendment created "original meaning" as Randy uses
> the phrase) believed in universal (well, not really, but close enough)
> militia service.

True enough, but never were all citizens thought to be members of the
militia (just as all citizens could not vote).

>They accordingly had no reason to distinguish between
> protecting gun ownership by "the people" as militiamen and "the people"
> as individual hunters, recreational shooters, self-defenders, etc.

But nevertheless they chose to use two different words--"militia" and "the
people"--in the same provision when one would have done just fine.
"Congress shall not disarm the militia" would have done the trick nicely and
would have had the virtue of expressing the thought that it is asserted, by
some, was on their minds.  And a "states rights" amendment to accomplish
just this purpose was proposed to them by Virginia, North Carolina, and
Pennsylvania:  "That each state shall respectively shall have the power to
provide for organizing, arming, and disciplining its own militia, whensoever
Congress shall omit or neglect to provide for the same."  Lest someone think
that this is the true precursor to the 2d Amendment, Virginia also
separately proposed under its suggestions for a "declaration or bill of
rights" that "the people have a right to keep and bear arms."  (And between
the two provisions you have all the terms at issue in use "state" "militia"
& "the people" each with a distinct meaning.)  They really did know how to
express themselves and they did not say what the modern theory wants them to
have said.

Instead they use the same term here ("the people") they use in the first,
fourth, ninth and tenth amendments where it presumably refers to
individuals, including women, rather than militia members.  Were women, who
were not members of the militia barred from possessing or carrying arms?  I
confess, I do not know the answer to this question but think not.  Even if
they were, however, the point stands.  If the framers of the 2d Amendment
meant to convey the meaning adopted by modern courts, they picked a poor
choice of words indeed.  Poor enough to fool all thoughtful commentators of
the era whose comments survive to this day.

>That
> is why Randy has come across no Founding-era statesman or lawyer who
> articulates the "states' rights" position as I (and modern courts) do.

This is just a theory of why there is an absence of such evidence.  An
alternative theory is that this was not anyone's view in that era.  Given
that the historical record is not bare--that there IS evidence of persons of
that era holding the individual rights view I specified in my previous
post--and that there is good reason for them to have held this view based on
the meaning of words (e.g. "right" "militia" "the people") and the sorts of
usages that Eugene is discussing in his posts, David's theory of why there
is an absence of contemporary statements of the modern view would be greatly
bolstered by some evidence.  Of course, we could discover a cache of new
statements that could show that there was a conflict of views of the time,
in which case we would have the harder interpretive job of deciding who back
then was correct.  But we need not cross that bridge until the cache is
uncovered.

> The question "Does the Second Amendment protect gun ownership by
> militiamen or gun ownership by all individuals" was an irrelevant
> question to Founding-era citizens, as the "militia" and "the people" were
> assumed to be one and the same.

Although I myself have sometimes made a similar equation between the
"militia" and the "people" I can understand why David would.  But it is not
quite right.  Women were a part of "the people" (albeit represented in
politics by their husbands and fathers), but were not members of the
militia.  Nor were the elderly or those below a certain age.  The two terms
are demonstrably not synonymous.

> If they are no longer one and the same,
> then we do have to answer that question.

But we must also remember two additional facts usually overlooked in this
context.  First, the unorganized militia has never ceased to be recognized
by federal statute and in similar terms as it always has been.   Though I
would not concede that Congress could abolish the militia by repealing this
statute, it undermines a claim of radically changed circumstances to realize
that it has not chosen to do so in all these years.  (In fact the militia
has been called out in the 20th Century.)  Second, the preface to the 2d
Amendment hardwires the importance of the militia into the Constitution
itself.  It is the Constitution, not the NRA, which says that "A
well-regulated militia [is] essential to the security of a free state. . .
."  That proposition is not open to dispute, as a matter of constitutional
law, I think unless the amendment is repealed.  Changing circumstances do
not change this text of the Constitution.  It is not open to the proponents
of the collective (or individual only in the militia) theory to dismiss this
text as irrelevant to present day interpretation.  For, lacking direct
contemporary evidence, their theory is based entirely on the existence and
meaning OF THIS PARTICULAR TEXT.  Yet, taken at face value, the text asserts
the constitutional value of a well-regulated militia.

I do not mean to make too much of this last argument.  The real strength of
the (originalist) individual rights position is (1) the plain meaning of the
text, (2) the "intratextual" comparison with other portions of the
Constitution (3) direct evidence in the historical record that this
amendment was taken to have this meaning back then (and for a considerable
time thereafter) and the absence of any direct evidence that THIS AMENDMENT
it had a different meaning back then (and for a considerable time
thereafter) (4) circumstantial evidence--e.g.. comparable wording in state
constitutions--that these words had that meaning back then  (5) (lagging
pretty far behind in order of importance) historical context to suggest that
this meaning would have made perfect sense back then given the founders
belief in the importance of an armed citizenry.

Then there is the evidence about the original meaning of the Privileges or
Immunities Clause. . . .

Randy
__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
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(617) 353-3077 (fax)
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