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

[Tobias Barrington Wolff]

An appropriate note on which to end a long (and enjoyable) exchange.  As 
George W. Bush would say, "There's just a difference of opinion here.  A 
difference of phi-lo-so-phy."

-- TBW

At 09:14 PM 10/17/2000 -0700, you wrote:

>         I certainly agree that the text of the 2nd Am is not consistent 
> with "an unregulated, unregulatable right to carry firearms for personal 
> use"; for that matter, the original meaning of the 1st Am is not 
> consistent with "an unregulated, unregulatable right to say whatever one 
> pleases," either.
>
>         My claim is simply that the text and original meaning of the 2nd 
> Am is much more consistent with an individual right that survives 
> government attempts to redefine the militia (though I stress again that 
> the militia is *still* defined to generally cover the armed citizenry) 
> rather than with a right that can be nullified by government 
> action.  Likewise, it seems to me that the text and original meaning of 
> the 2nd Am is much more consistent with a right of individuals (the same 
> sort of "right of the people" as is mentioned in the 1st Am and the 4th 
> Am) than with a right of states or a right of a subgroup of the militia.
>
>         As to Prof. Wolff's point about the gender of the litigants, I 
> confess I don't quite understand it.  To the best of my knowledge, "man" 
> was often meant during that time to generally mean "person."  I am 
> certainly unaware of any evidence that constitutional rights provisions 
> that referred to "men" were ever meant, by that usage, to exclude 
> women.   R.I. Const. art. I, § 14 (1842), for instance, says that "Every 
> man being presumed innocent, until he is pronounced guilty by the law, no 
> act of severity which is not necessary to secure an accused person shall 
> be permitted."  Is the claim really that this provision was at the time 
> seen as excluding women?   Mass. Const. pt. I, art. XIV (1780) and N.H. 
> Const. pt. I, art. XIX (1784) say that "Every subject has a right to be 
> secure from all unreasonable searches, and seizures, of his person, his 
> houses, his papers, and all his possessions."  Is the claim that women 
> lacked such rights, because a woman's person wasn't "his person"?  I 
> suspect that the provisions were always understand to refer to both 
> genders, just as Madison's proposal was, so there's no need for updating 
> their meaning to comply with "modern understanding of principle" -- they 
> complied with modern principles (even if not modern drafting practice) 
> all along.
>
>         I appreciate, however, Prof. Wolff's analogy of his argument to 
> Owen Fiss's and Cass Sunstein's proposals for diminishing in some measure 
> the protections of the 1st Am; they support my view, see 
> <http://www.law.ucla.edu/faculty/volokh/amazing.htm>http://www.law.ucla.ed 
> u/faculty/volokh/amazing.htm, that we should scrutinize carefully claims 
> that changing circumstances require a cutback (or elimination) of 
> constitutional rights, given that there are lots of rights besides the 
> 2nd Am right that some are proposing to cut back.
>
>
>-----Original Message-----  From:   Tobias Barrington Wolff 
>[SMTP:tbwolff at UCDAVIS.EDU]  Sent:   Tuesday, October 17, 2000 8:37 
>PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re: Disarming 
>the citizenry vs. the right to keep and bear arms
>
>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.ed 
> u/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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