Disarming the citizenry vs. the right to keep and bear arms

[Tobias Barrington Wolff]

At 03:17 PM 10/17/2000 -0700, you wrote:
>         The 2nd Am is clearly meant to constrain the government; it's
> hard to see how this can be reconciled with an asserted power on the
> government's part to entirely eliminate the constraint by just redefining
> the militia as "state police forces and national guards."

Given that the Second Amendment was written to apply to the federal
government, and not to the States, I don't find it at all hard to see how
the constraint on federal tyranny embodied in the amendment was intended to
be effectuated through the mechanism of State governments.  The amendment
does say a "well regulated" militia.  I, in turn, find it hard to see how a
reading of the amendment that confers an unregulated, unregulatable right
to carry firearms for personal use exhibits any greater fidelity to the
text itself.

As to your two hypotheticals, let's indeed say that the trial-by-jury
clause was enacted in the form that Madison proposed.  Would you argue that
it should apply only to male litigants, and not to female litigants?  After
all, Madison wrote, "In suits at common law, between man and man".  Why
should the "changed condition" that we now view women as equal citizens
enjoying equal status embolden us to "reinterpret" the amendment
accordingly?  For that matter, why do we say that the First Amendment (as
written) applies to injunctions issued by courts?  The amendment quite
clearly specifies "Congress," regardless of whether we think that applying
its provisions to the actions of courts is consistent with the principles
that the amendment embodies.  If we think that these results are
inconsistent with modern understandings of principle, after all, we can
amend the Constitution.

I don't mean to sound flip.  I simply believe that there is no easy way for
courts to avoid an examination of constitutional provisions that,
sometimes, requires them to ask questions like, "What principles does this
provision embody and how can those principles most meaningfully be
effectuated under present conditions."  Of course I would reject the
revision of the New Hampshire and Vermont speech provisions that you offer
as hypotheticals.  It would be much easier if I could do so through a
simple, categorical rejection of any inquiry that revisits animating
principles in deciding how a provision is to be interpreted.  But I
cannot.  Instead, I would have to argue that, even if one views the
preamble to those state provisions as qualifying the right therein, changes
in culture and technology do not (indeed, could not) alter the basic
necessity of free deliberation, speech and debate in a representative
democracy.  I might well argue, however, that such changes might bear upon
the proper application of the provision in individual cases, as Owen Fiss,
Cass Sunstein and others have done so powerfully in discussing the impact
of mass media upon the ability of individuals to make their voices heard in
modern America.  I am afraid that I don't think we can avoid these
inquiries.  Our jobs would be a lot easier if we could.

-- TBW

>         It is of course much easier to read the provision as (1) securing
> a right that belongs to "the people" and not to state police forces and
> national guards, and (2) as doing so in the service of preserving "the
> militia" in the sense in which the term was used in the late 1700s and is
> still used today in the Militia Act of 1956 -- the armed citizenry.  As
> between one reading that makes a constitutional right completely
> eliminatable by the government, and another reading that treats the right
> as a real constraint on the government, it seems to me much more
> plausible to infer that the drafters of the Bill of Rights meant the latter.
>
>         Incidentally, I don't know of much evidence that the "militia"
> was treated as primarily a law enforcement agency or an adjunct to a law
> enforcement agency.  Rather, it was treated as the armed citizenry, ready
> to be used by the government to suppress rebellion and to fight foreign
> aggression -- and, as Blackstone, Madison, Tucker, Story, and Cooley make
> clear, ready to fight (or, better yet, domestic oppression).
>
>         Finally, as to changed circumstances and justificatory clauses,
> let me ask the following:  Say that the 7th Am was enacted in the form in
> which Madison first proposed it, which is that "In suits at common law,
> between man and man, the trial by jury, as one of the best securities to
> the rights of the people, ought to remain inviolate."  And let's say that
> the Court concludes that today, because of the growing complexity of the
> law and the changing nature of society, the trial by jury in civil cases
> is longer one of the best securities to the right of the people.  Would
> it be sensible to read this provision as no longer effective, on the
> grounds that it only applies *when* the trial by jury is one of the best
> securities to the rights of the people, or only *so long as* the trial by
> jury is such a security?  Or would it be more sensible to take the view
> that the right is secured and remains secured as a check on the
> government, regardless of whether the government believes that it still
> makes sense?
>
>         Or say that we're interpreting the Massachusetts Speech and
> Debate Clause (or the very similar New Hampshire and Vermont provisions),
> which says that "The freedom of deliberation, speech, and debate, in
> either house of the legislature, is so essential to the rights of the
> people, that it cannot be the foundation of any accusation or
> prosecution, action or complaint, in any other court or place
> whatsoever."  Would a court be justified in treating this as obsolete if
> it concludes that freedom of speech and debate is no longer essential to
> the rights of the people, but is now destructive of them (perhaps because
> of the risk that modern technology can broadcast libels said in the
> legislature more broadly, or because the provision is no longer necessary
> given the protections already provided by modern free speech
> doctrine)?  Or would we say that the right remains, and that the
> government has no power to disregard it even if it thinks that conditions
> now warrant such disregarding?
>
>         I give many more examples of such provisions in my Commonplace
> Second Amendment article,
> <http://www.law.ucla.edu/faculty/volokh/common.htm>http://www.law.ucla.edu
> /faculty/volokh/common.htm
>
>Tobias Wolff writes:
>The thing is, the text of the Second Amendment is not straightforward.  If
>we divorce text from context or animating principles, what we are left
>with is a right with a qualifying preamble: "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."  It is Second Amendment
>enthusiasts who tend to make arguments from history or principle in an
>attempt to circumvent the import of the text itself.  As has been
>exhaustively explained by others, in the Eighteenth Century, local law
>enforcement agencies depended upon participation from volunteers, who
>owned their own weapons and contributed their time and efforts when the
>necessity arose, forming themselves into "Militias."  Recognizing the
>importance of such local law enforcement resources to the security of the
>citizenry (and perhaps even as a bulwark against the tyranny of the
>federal government, which was certainly a concern in an era when absolute
>monarchs were the only precedent for centralized executive authority), the
>framers provided that "the people" enjoy a "right . . . to keep and bear
>Arms" in service of "A well regulated Militia" -- what are, today, state
>police forces and national guards.
>
>-- TBW
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