Originalism and the 2d Amendment

Mon Oct 8 03:14:45 PDT 2001

This reply to Jack Rakove's thoughtful post is not intended to substitute
for a comprehensive response either to his article, which it has been 10
months since I have read, or to the C-K symposium.  I agree with Glenn
Reynolds, by the way, that the sheer massiveness of the issue has kept me
from dealing with it given my other research commitments.  It is hard to
immediately put down what one is working on, such as a book project and
paper commitments for conferences, etc.  But I agree that eventually this
needs to be done.  I should add, by the way, that I did not put down my
other projects to write about Arming America either (except for writing
posts to the list of course which takes way too much time as it is).  That
honor belongs to Jim Lindgren, Joyce Macolm, Robert Churchill, Randy Roth
and others, who deserve our appreciation for their willingness to sacrifice
their scholarly agenda to correct the record.

In his last post, Jack writes:

 "It is in any case a non sequitur to suggest that the overall composition
of the C-K volume can detract from its merits . . . ."

IF, however, contributors to the issue attacked straw men, or made mistakes
that could have easily been correct by paper commentators--and no such
knowledgeable commentators were invited to participate--then the overall
composition of the Symposium could very well have detracted from its merits.
One such straw man argument, emphasized in Jack's article, is illustrated in
his post:

"There was, in fact, no sustained discussion of an individual right to bear
arms, immune to regulation by state law, during the entire ratification
period, which is not surprising because there was hardly an intelligible way
in which that question could have been formulated."

The suggestion that individual rights theorists postulate that the Second
Amendment somehow restricted state powers is repeated several times in
Jack's article (see e.g. pp. 112 & 151) and stressed in his conclusion:
"Finally, the complete omission from the individual right interpretation of
any discussion of the police power of states constitutes its most telling
flaw. . . ." (163)

I know of no individual rights scholar who has suggested that the Second
Amendment was thought to or did bar action by state governments and, as I
recall, in his article Jack cites no examples of scholars who make this
argument.  All the writers with whom I am familiar would concur that the
Bill of Rights initially applied only to the federal government, though that
assumption eventually came early on to be challenged by abolitionist
constitutional lawyers.  Had any single individual rights scholar been at
the Chicago-Kent symposium, I doubt that Jack would have stuck with this
inaccurate characterization of their writings.  By the time I appeared with
him on a more balanced panel in January (for a Federalist Society sponsored
conference) and pointed this out, however, it was too late for his article
which was already in press.

It would also have been pointed out to the Symposium participants that
individual rights scholars base their conclusion that State police powers
are restricted to the original meaning of the Privileges or Immunities
Clause of the Fourteenth Amendment. Examples of privileges or immunities
routinely cited in debates over that amendment, as summarized in Michael
Curtis' book "No State Shall Abridge," include the freedom of speech, the
freedom of the press, and the right to keep and bear arms.  As Cottrol &
Diamond have shown, the latter right was thought particularly important to
protect blacks, unionists, and Republicans in the South from violence
inflicted upon them BY THE MILITIA itself.  Jack says nothing about the
Fourteenth Amendment and how it affected the police power of States in his
very lengthy paper, as I recall.

Before my friend Michael Curtis jumps in, let me add another point any
individual rights scholar would have been happy to interject into a balanced
discussion:  The protection of an individual constitutional right, such as
that of the press, speech or to bear arms, need not be inconsistent with
reasonable regulation by an authority with proper jurisdiction, though it IS
inconsistent with complete confiscation and prohibition.  No where in his
nuanced discussion of original meaning does Jack address the difference
between regulation ("if you want to do X here is how you must do it") and
prohibition ("you may not do X").  I realize that this distinction is not
entirely unproblematic, but it is crucial to an understanding of how people
can advocate an individual right and still believe in government regulations
that are shown to be truly necessary and proper.  (It is also crucial to
understanding how the Privileges or Immunities Clause could protect
unenumerated rights without supplanting the whole of state private law.)

Jack also writes:

 "Maybe I'm wrong, but I am under the impression that many of the pieces of
evidence I discuss in my essay do support the collective rights view, which
of course is exactly why I discuss them. And conversely, when you look
seriously for statements that unequivocally and clearly endorse an
individual right view, they seem to me to reduce to the same tired handful
of citations, most famously the dissent of the minority in the Pa. ratifying
convention, which can hardly be deemed authoritative. "

I did not say that there are no statements that can be made to "support" an
collective rights view--though most of the "contextual" arguments succeed
merely in showing that such statements can be made CONSISTENT with a
collective rights view.  I know of no contemporary statement that actually
suggests the Second Amendment refers to a collective right--the sort of
evidence an historian would obviously prefer to statements that are merely
not inconsistent with that meaning.  My point was simply that there is no
surviving example of an historical figure who actually characterized "the
right to keep and bear arms" as some sort of collective right.  Collective
rights scholars like to refer to "the same tired handful of citations," but
when claiming that a particular constitutional provision was interpreted a
certain way at the Founding, I would rather have a handful of
examples--however "tired" they may be--than none at all.

Jack's article, lengthy though it is, does not attempt a comprehensive
analysis of all the different sources relied upon by individual rights
theorists--or even very many of them.  For example, he does not discuss or
quote, so far as I can recall, the published contemporaneous description by
Tench Coxe of the just-proposed Second Amendment as "The people are
confirmed by the next article in their right to KEEP AND BEAR THEIR PRIVATE
ARMS"--though he does report his discovery that, in an individual rights
article, Coxe is referred to as "Trench."  (Would that the many errors of
Michael Bellesiles--who Jack relies upon uncritically and thanks for his
"general guidance"--had been as irrelevant to the thesis of Arming America.)
[HEY, my spell-checker just tried to change "Tench" to "Trench."  Do you
suppose....?]

I don't think that Jack comments either on Madison's notes from his
amendments speech which say "Read the amendments--They relate 1st to private
rights," or on the fact that Madison proposed that the right to keep and
bear arms be inserted with the rights of free speech and press immediately
after the other individual rights already listed in Art I sec. 9--rather
than as a qualification of the Militia Power in Art I, sec. 8--though he
does mention the fact that Madison initially proposed intersperspersing
amendments into the text thereby literally changing the Constitution.

Then there is this passage from first treatise on the Constitution by jurist
and professor St George Tucker (published in 1802 based on lectures given in
the 1790's):
If, for example, congress were to pass a law PROHIBITING ANY PERSON FROM
BEARING ARMS, as a means of preventing insurrections, the judicial courts,
under the construction of the words necessary and proper, here contended
for, would be able to pronounce decidedly upon the constitutionality of
these means. But if congress may use any means, which they choose to adopt,
the provision in the constitution which secures to THE PEOPLE the right of
bearing arms under such an act, might be without relief; because in that
case, no court could have any power to pronounce on the necessity or
propriety of the means adopted by congress to carry any specified power into
complete effect.

Tucker makes no mention of the "militia" or militia service.  He speaks only
of "any person."  Does this single quote PROVE that the individual rights
understanding of the Second Amendment was the only or prevailing
understanding?  Of course not.  No single quote can do that.  But a single
quote can prove this:  it was AN understanding of the Second Amendment at
the time of the Founding.  It proves that the individual rights
interpretation is NOT an invention of the NRA.  Jack does not discuss the
significance (or lack thereof) of Tucker's description.

After this there is the next treatise-writer William Rawle's 1829 statement
that:
"The corollary, from the first position, is, that the right of the people to
keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule
of construction be conceived to give to congress a power to disarm the
people. Such a flagitious attempt could only be made under some general
pretence by a state legislature. But if in any blind pursuit of inordinate
power, either should attempt it, this amendment may be appealed to as a
restraint on both."

Rawle's statement that the Second Amendment could be viewed as a restraint
on State as well as Federal power probably reflects what Jack properly calls
the "declaratory" view of the Bill of Rights.  For those who do not like
Tucker or Rawle, there is always Story's (much later) reference to "The
right of THE CITIZENS to keep and bear arms . . ." which enables the people
to "resist and triumph over" the "usurpation and arbitrary power of rulers."
I believe that none of these statements are discussed in Jack's article.
PLEASE NOTE:  As I did not completely reread Jack's article before writing
this post, I sincerely apologize if I am mistaken and any of these various
references to the right to keep and bear arms are discussed in his article.

Yes, I realize that all but Coxe's statements came after
ratification--though Tucker's statement can be considered nearly
contemporaneous--but if they prove nothing else about original
understanding, once again they prove beyond any doubt that this conception
of the Second Amendment was no invention of the NRA or today's individual
rights scholars.  Perhaps with these quotes in mind, it is not unreasonable
to take the proposal by dissenters to the Pennsylvania ratification
convention (well before the Amendment was drafted) at face value.

In stark contrast, however, to date not a SINGLE comparable quote of someone
in the Founding era, or immediately thereafter, taking the "collective
rights" view of the Second Amendment has been produced.  Should one now be
discovered, this would not end the debate, of course, but the complete
absence of such evidence should give pause to those who take a condescending
tone towards those scholars who have reach the conclusion that the right
protected by the Second Amendment was on a par with those protected by the
First Amendment.  "Context" explaining away these and other statements is no
substitute for comparable evidence that some other meaning of the language
of the Second Amendment ACTUALLY EXISTED at the time of the Framing or for
decades thereafter.  In the face of contrary statements by prominent
speakers, the "it went without saying" hypothesis only takes one so far.
Here as elsewhere we can only judge based on the evidence available.

Jack also writes in his post:

 "What there was, by contrast, was significant discussion of the future
status of the militia, an issue which individual right writers like to
address, or I would say finesse, by saying that only one definition of the
militia--the one that equated it with the entire free adult male
population--was in play and dominant. Again, that is something that I and
others have disputed."

The thrust of Jack's article, to which I cannot do full justice here, is
that the bulk of the debates at framing period concerned the "militia" and
that individual rights scholars have at times misunderstood how the founders
conceived of the militia.   The latter point may or not be true, but I am
sure individual rights scholars can benefit from the thoughtful criticism of
knowledgeable historians like Jack Rakove (just as he could benefit from
that of individual rights scholars).  As for the first point, the answer is,
"but of course."

Individual rights scholars have always argued (rightly or wrongly) that the
Second Amendment was, in part, a reaction to the power over the militia
given to the national government in Article I, which would give it the
ability to neglect or redefine the militia (as it has done).  Thus, since
you cannot write an enforceable amendment COMPELLING the national government
to "take care" that a militia be "well-regulated," the only means of
preserving the possibility of a continued militia is to protect an
INDIVIDUAL right to keep and bear "their own private arms"  In short, to
prohibit disarmament of the citizenry.   If the national government then
wants to regulate the militia, as a militia, it has expressly been given the
power to do so.  What it cannot do, constitutionally, is disarm the people
by seizing their guns or prohibiting the exercise of their right.

Jack concludes:
 " All I can say (prayerfully without living to regret it) is that I would
dearly love to see my own essay subjected to the same critical scrutiny
directed against Michael. "

There is an old saying that begins, "be careful what you wish for . . . "
;-)  I very much look forward to subjecting his thought-provoking article to
critical scrutiny when I get the chance, as I volunteered to do last year at
the Chicago-Kent symposium.

Cheers,

Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
http://www.randybarnett.com
http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
http://www.LysanderSpooner.org (Lysander Spooner Website)
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