Heller question

Heyman, Steve Sheyman at kentlaw.edu
Thu Jun 26 13:31:46 PDT 2008


Let me restate the point in terms of what Larry calls the "semantic meaning" of the Second Amendment's protection for "the right of the people to keep and bear arms."  The term "the people" can mean two different things -- it can refer to "the people" as individuals or "the people" as a collective body.  As Scalia grudgingly concedes on p. 6 of his opinion, the Constitution does sometimes use "the people" in a collective sense, e.g, in the preamble ("We the People"); in art. I, sec. 2, which provides that the House of Representatives shall be elected by "the people"; and in the Tenth Amendment, which reserves certain powers to "the people."  The question is whether the Second Amendment uses the term in the same way, or instead uses it to refer to individuals (as the Fourth Amendment does, for example).  

I would argue that the best reading of the protections for the right to arms in the state declarations of rights is that they do use "the people" in a collective sense.  So for example, when the Virginia declaration provides:  

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

it is clearly using "the people" in a collective sense, and as I have said, this provision was an important source of the language that was eventually adopted in the Second Amendment.  Obviously, this isn't the place to lay out all the evidence for the claim that the Second Amendment uses "the people" in a collective sense, to refer to the people acting as a militia.  (I do this in the article that the Court cites on p. 6 n.9, which was originally published as Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237 (2000)).  But just to clarify the point, the claim is not simply that the *purpose* of the Second Amendment was to ensure that militia members could have arms, but that *the meaning or semantic content* of the provision is that the right of the people in their capacity as the members of the militia could not be infringed.  The analogy here would be to a provision that stated, "Republicanism being necessary to the government of a free state, the right of the people to have free elections shall not be infringed."  That provision would clearly protect a collective right of the people to hold elections, and thereby retain the political power of the community in their own hands (though it might also protect the right of individual citizens to participate in those elections).  In the same way, I would argue that the Second Amendment protects a collective right of the people to retain (as far as possible) the military power of the community in their own hands (though it might also protect the right of individuals to participate in the militia).

Steve

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