December 24, 2007
• Vanishing 2nd Amendment
The Amazing Vanishing Second Amendment
(73 NYU L. Rev. 831 (1998))
I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” 1 A part of the Bill of Rights has mysteriously vanished.
This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” 2 As the Court said when defending another unpopular right:
If it be thought that [a right] is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process. 3
And yet by an interpretive feat, a right specifically guaranteed by the Bill of Rights is gone. How is this vanishing act accomplished, and which rights can it turn to next? 4
I. “The Body of the People” and the Operative Clause
Professor Williams begins by claiming that, even setting aside the justification clause, 5 the Second Amendment’s operative clause — “the right of the people to keep and bear arms shall not be abridged” — doesn’t recognize a right of individual persons. Rather, he argues, it protects only “the right of the Body of the People,” “the people considered as a unified, homogeneous, organic, collective body devoted to the common good.” And “[b]ecause we no longer have a Body of the People, . . . the amendment simply cannot mean what once it meant.” 6
That’s a creative theory, but is it supported by the evidence? The clause itself speaks of a “right of the people,” the same language that’s used immediately before in the Petition Clause and shortly after in the Fourth Amendment. This seems like a strong suggestion that the right to keep and bear arms likewise belongs to each individual person.
Of course this suggestion might be rebutted by contrary evidence from other sources, such as the operative clause’s historical antecedents. None of them, though, mention any “Body of the People.” The English Bill of Rights provision on which the clause is based speaks of the right of “subjects.” 7 The 1776 North Carolina, 1776 Pennsylvania, 1777 Vermont, and 1780 Massachusetts Constitutions speak simply of “the right of the people,” with no hint of a “Body of the People”; the 1790 Pennsylvania and 1792 Kentucky Constitutions even more unambiguously speak of “the right of the citizens”; the 1796 Tennessee Constitution speaks of “the right of the freemen”; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitutions refer to the right of “every citizen.” 8
All the material I’ve seen suggests that these provisions were considered at the time to be basically similar. I know of no evidence that some were seen as creating an individual right and some as creating a right of a “Body of the People.” 9 This suggests that “the right of the people” means the same thing as the right of “subjects” or “the citizens” or “every citizen” — not of some “Body of the People.”
What about the commentators? Sir William Blackstone described the English right as the “right of the subject.” 10 St. George Tucker treated Blackstone’s “right of the subject” as equivalent to the Second Amendment’s “right of the people.” 11 William Rawle likewise treated the Second Amendment as an expansion of the English right of “subjects,” and seems to have assumed the right could be exercised even “by a single individual.” 12 Justice Joseph Story called the American right a “right of the citizens.” 13 Nowhere is there any hint that the right belongs not to each person, subject, or citizen, but to some “Body of the People.”
Finally, would it have made sense, in the legal environment of the time, for the Framers to recognize a constitutional right possessed by a “Body of the People”? Professor Williams admits, as he must, that the right does not belong to the states. 14 He claims it does not belong to individuals. But if that’s so, how can some intermediate entity — an entity with no independent legal existence and no official spokespeople who could assert the right — have a constitutionally guaranteed right that individual citizens do not have? I’ve seen no evidence that the Framers envisioned constitutional rights operating this way.
II. “The Body of the People” and the Justification Clause
So where does this “Body of the People” come from? Well, it does appear in one related state constitutional provision of the time, the Virginia Militia Clause: “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.” 15 The Virginia Constitution lacked a right to keep and bear arms until 1971, but the Virginia Militia Clause indeed seems to have been a forebear of the Second Amendment’s justification clause. The Virginia ratifying convention included it in its proposals for a federal Bill of Rights, and the North Carolina, New York, and Rhode Island proposals — which were generally based on the Virginia proposal — copied this provision. 16
I’m not persuaded that the “Body of the People” here means “the people considered as a unified, homogeneous, organic, collective body, devoted to the common good.” 17 It seems to me to stand only for the bulk or great majority of the people. 18 But in any event, these provisions merely show that the militia consists of the body of the people. And the operative clause speaks of a “right of the people,” not a right of the militia.
So to get to his conclusion, Professor Williams must take two extra steps. First, he must conclude that the operative clause, which recognizes a right of “the people” (equivalent, as I argue above, to a right of each citizen or subject), should be read in light of the justification clause as creating a right of “the body of the people.” Second, he must conclude that, though the body of the people still literally exists, it no longer serves the purpose that was supposedly envisioned by the framers of the justification clause: Arming the body of the people is no longer necessary, or even helpful, to the security of a free state.
Thus, the argument must go, because the assumptions underlying the justification clause are no longer true, the right created by the operative clause has disappeared. This is basically the argument I attribute to Professor Williams in my Article. 19 Professor Williams does indeed argue, under his “unitary” method of interpretation, that the right exists only so long as the justification remains valid.
Here is where I would have liked to see Professor Williams confront my core observation — the existence of the other state constitutional provisions that contain justificatory clauses. Would his “unitary framework” apply to the state Speech and Debate Articles or the New Hampshire Venue Article? Should they also be “meaningless” to judges who conclude that the Articles’ justifications are no longer valid? Do the state Liberty of the Press Articles vanish because we no longer have a virtuous, republican press? 20
Madison’s original draft of the Seventh Amendment’s Civil Jury Trial Clause read, “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.” 21 Has this right also become “meaningless” or “outdated” as enlightened opinion has retreated from the premise that the civil jury trial is indeed “one of the best securities to the rights of the people”? 22 After all, if the people have lost the virtue needed to possess arms, maybe they’ve also lost the virtue needed to serve on juries. 23
As I argue in my Article, the state constitutional provisions show that many operative clauses will be overinclusive and underinclusive with respect to their justificatory clauses: Checks on government authority often take the form of bright line rules that don’t perfectly fit their justifications. 24 If I’m right in this, then a “unitary” framework that insists on trying to “make the two clauses as consistent as possible” 25 — thus ignoring the possibility of intentional over- and underinclusiveness — is the wrong way to deal with justification clauses.
But even if I’m wrong, it might have been profitable for Professor Williams to
test [his] interpretive approach [by] applying it to a wide array of texts of different political valences. It’s easy enough to craft an interpretive trick that reaches the result one wants in the case for which it was crafted. But when one tests it against other provisions, one sees more clearly whether it’s a sound interpretive method. 26
III. The Unchanged Changed Circumstances
Professor Williams conjures with more than just the text and original meaning; he also makes a changed circumstances argument. The Second Amendment, he concedes, once recognized a right that was a potent check on the government, but today things are different. The Second Amendment “by its own terms . . . makes sense ‘only so long as pretty much everyone has arms, and so long as the arms-bearers are “virtuous,”´” 27 because otherwise the arms “will necessarily be [used] in the interests of a slice of the population, rather than for the common good.” 28 And today, “the American citizenry is so fractured . . . that [a true] Revolution [made by the Body of the People for the commonweal] is impossible.” 29
Rather than “pretty much everyone [having] arms,” 30 “gun ownership today is markedly demographically skewed.” 31 “Today, because of social changes, we can see [as the Framers did not] the possible contradiction between [the people as individuals and the Body of the People], as American citizens are more individual than ever, but they have given up aspirations to peoplehood in the strong republican sense . . . .” 32 Today, there “no longer exists” the “organic collectivity” on which the Second Amendment is based. 33 “[T]he Framers did intend to guarantee a right for all Americans to own guns, but . . . they presupposed that Americans would have a collective identity that they now lack.” 34 Americans once had this right, but things are different today, so the right is gone.
But Professor Williams provides no evidence that the circumstances on which he relies have actually changed. Sure, American society today is to some extent fractured. So was American society in the late 1700s, when Americans divided in their loyalties in the Revolutionary War, 35 in their private economic and religious interests, 36 along geographical lines, and in other ways. 37 Now as then, many look out for the common good, and aspire to “peoplehood in the strong republican sense.” Then as now, many people instead focused on individual or factional interests. The notion of a virtuous “organic” republican past, as contrasted to a fragmented collective-identity-less present, is myth. 38
Likewise, gun ownership today is indeed not universal — about 35% to 50% of all households now have guns 39 — but Professor Williams gives no evidence that things were ever different.
[2002: The accuracy of Professor Bellesiles’ research has been cast into very serious question, so I have to, with apologies to my readers, retract the material in the next two sentences. Nonetheless, I believe my broader point remains correct; I doubt that gun ownership around the time of the Framing was materially higher than the 35-50% ownership level today, and Professor Williams definitely does not give any evidence that Framing-era gun ownership was above 35-50%.
— Eugene Volokh.]
In fact, historian Michael Bellesiles (who opposes the individual rights theory of the Second Amendment) has estimated that gun ownership levels in the late 1700s were lower than today, perhaps 15% of all households. 40 Professor Bellesiles estimates that in 1810, no more than 5% of Americans, or 20% of adult white males, were armed. 41
[End of retracted material.]
Today 25% to 30% of adult Americans, and about 40% to 50% of adult males, own guns. 42 Even without these estimates, it seems quite plausible that the fraction of late 1700s households who possessed what was at the time quite an expensive piece of technology would not have been much greater than 35% to 50%.
Similarly, gun ownership today is indeed demographically skewed; for instance, 44% of white households and only 29% of black households own guns. 43 But we have no reason to believe that ownership wasn’t skewed in the late 1700s, whether by race, ethnicity, or geography. 44
The Framers well understood human selfishness and the tendency of society to “fracture.” The drafter of the Second Amendment, after all, also wrote about the inevitability of “faction” — “citizens . . . united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 45 I suspect the Framers knew that their neighbors were not “a unified, homogeneous, organic, collective body, devoted to the Common Good,” 46 and saw that they did not all own guns. How then can it be said that the Second Amendment “by its own terms . . . makes sense ‘only so long as pretty much everyone has arms, and so long as the arms-bearers are “virtuous”´” 47 — a supposed condition precedent that was false even when the Amendment’s “own terms” were written? 48
Professor Williams’s argument reinforces my skepticism about reading justification clauses as excuses to nullify rights. If we authorize judges to conclude that, because of some supposed historical change, a constitutionally guaranteed right is “outdated,” we jeopardize all constitutional liberties — including those secured by the Speech and Debate Articles, the Liberty of the Press Articles, the Civil Jury Trial Clause, and any other constitutional provision that indicates, explicitly or even implicitly, 49 its justification. Is this how a Bill of Rights should be read?
IV. Avoiding Amazing Vanishing Acts
My interpretive approach is built on the notion that Bills of Rights are aimed at constraining the government. This is why operative clauses are often overinclusive and underinclusive with regard to their justifications, and why we shouldn’t adopt interpretive methods that let courts read justification clauses as implicit authorizations for making rights vanish. 50 I try to support my approach by giving examples from other constitutional provisions, ones I like and ones I dislike, ones that appeal to the Left and ones that appeal to the Right. There’s a certain discipline that comes from recognizing that the interpretive method we sow today for one provision might be reaped by us tomorrow for another.
My approach, as my Article concedes, has its difficulties. 51 But at least it doesn’t lead to a right mysteriously vanishing on the grounds that some find it “meaningless” and “outdated.” That, it seems to me, is a point in favor of my method — especially when there are other rights that many would happily read out of our Constitution.