December 25, 2007
• Commonplace 2nd Amendment
The Commonplace Second Amendment
(73 NYU L. Rev. 793 (1998))
The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often — and for good reason — be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
“The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms.” 1 This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions — perhaps to the point of reading it as having virtually no effect on government action. 2
My modest discovery 3 is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island’s 1842 constitution, its first, provides
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 4
Compare this to the Second Amendment’s
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. 5
The 1784 New Hampshire Constitution says
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 6
The 1780 Massachusetts Constitution — followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution — says
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. 7
I list dozens more such provisions in the Appendix. These provisions, I believe, shed some light on the interpretation of the Second Amendment:
- They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
- They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
- They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause. 8
- They point to how the two clauses might be read together, without disregarding either.
The provisions also suggest two things about interpretation more generally. First, they remind us that the U.S. Constitution is just one of the at least fifty-one American constitutions in force today, and one of the dozens of constitutions that existed during the Framing era. 9 The legal academy’s understandable focus on federal matters can blind us to some important details.
Second, these provisions help show the value of testing interpretive proposals against a politically mixed range of texts. On a topic as incendiary as gun control, it’s obviously tempting for people to reach an interpretation based largely on their policy desires. If we want to be honest interpreters, a broad set of test cases for our interpretive method is a good tool for checking our political biases.
I. A Normal Right
To begin with, so long as the Second Amendment seems strikingly unusual — so long as it appears to be the only provision with a justification clause — people will naturally wonder whether this oddity is some sort of signal: Perhaps, for instance, the Framers were themselves so hesitant about the right that they intentionally tried to limit its force; in any event, they must have been telling us something, or else why would they have written the Amendment so strangely?
The state provisions show that the Second Amendment is just one of many constitutional provisions that happen to be structured this way, and that the federal Bill of Rights is just one of many that contain only one or a few justification clauses. 10 I have seen no evidence of a correlation between the presence of a justification clause and the provision’s perceived importance. 11
These state provisions also remind us that early constitutions were political documents as well as legal ones. They were meant to capture people’s allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it. In this context, setting forth the justifications for a provision makes perfect rhetorical sense. This observation doesn’t dispose of the question of what legal significance should be given to the clauses once they are enacted, but it does counsel against viewing the presence of the clauses as something deeply portentous.
II. A Permanent Right
Some people suggest the justification clause provides a built-in expiration date for the right. So long as a well-regulated militia is necessary to the security of a free state (or so long as the right to keep and bear arms contributes to a well-regulated militia, or so long as the militia is in fact well-regulated), the argument goes, the people have a right to keep and bear arms; but once the circumstances change and the necessity disappears, so does the right. 12
This reading seems at odds with the text: The Amendment doesn’t say “so long as a militia is necessary”; it says “being necessary.” Such a locution usually means the speaker is giving a justification for his command, not limiting its duration. 13 If anything, it might require the courts to operate on the assumption that a well-regulated militia is necessary to the security of a free state, since that’s what the justification clause asserts. 14
But the unsoundness of the “temporary right” reading becomes even starker when one considers the other state constitutional provisions. Consider, for instance, the New Hampshire Venue Article:
In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 15
Today few believe that the trial of the facts in the vicinity where they happen is essential to life, liberty, and property. Perhaps this was so when most jurors were expected to rely on their personal knowledge about the facts or about the characters of the defendants and the witnesses, when travel was very difficult, or when cultural divides were primarily geographical. 16 Today, though, it’s much more common to hear insistence on a trial being moved outside the vicinity where the crime was committed, on the theory that jurors in the area of the crime would be unduly inflamed against the defendant. 17 Even those who support local trials would probably only say that local trials are helpful, not “essential”; and even those who stress the importance of trial by jurors who come from a demographically similar place wouldn’t care much about trial in the same county. We wouldn’t, however, interpret the “is so essential” language in the Venue Article as meaning “so long as it is believed by judges to be essential.” Bills of Rights are born of mistrust of government: The government is barred from prosecuting cases in another county because of the fear that some future government may not be attentive enough to “the security of the life, liberty, and estate of the citizen.” The provision’s enactors doubtless contemplated that there’d be disagreement about the value of local trials. 18 It seems most likely that they mentioned the value of local trials in the constitution to show their commitment to this position, 19 not to leave the judiciary — itself a branch of the government — carte blanche to conclude otherwise, 20 and thus eliminate the operative clause’s check on government power. 21 The trial-in-the-county provision must remain in effect whether or not a judge thinks it still serves the purpose; the provision was enacted by the people, and it’s up to the people, not judges, to decide whether it’s obsolete. 22
Likewise, consider the Massachusetts, New Hampshire, and Vermont Speech and Debate Articles, each of which provides 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. 23
Today, many might doubt that entirely unfettered freedom of speech in the legislature — including, for instance, the freedom to defame people with impunity — is really “so essential to the rights of the people.” It may have been seen as “essential” by people who lived in a time when speech outside the legislature was more legally constrained than it is now, or who had lived under a mighty undemocratic executive, a judiciary appointed by that executive, and a legislature that was just starting to assert its prerogatives. 24 But today, even without a Speech and Debate Article, legislators would be as free to speak their minds as are newspaper publishers, political candidates, and so on — probably free enough to preserve “the rights of the people.” Some might even say the rights of the people today are more jeopardized by legislators’ power to slander people or order arrests or issue subpoenas without risk of punishment than they would be by legislators made timid by the absence of the speech and debate privilege. 25 Even those who disagree could probably imagine a reasonable judge taking this view. Nonetheless, I take it courts ought not use this altered context as a reason to nullify the Speech and Debate Articles. Bills of Rights are meant to prevent certain kinds of governmental conduct precisely in the face of claims that this conduct is more conducive to people’s greater happiness or even greater liberty. Courts should read the provision as (1) declaring that, no matter what you or I might think, the enactors of the right believed that unlimited legislative freedom of speech was indeed essential to the rights of the people, and (2) commanding that such freedom be preserved so long as the provision remains part of the Constitution. They ought not read it as preserving the right only so long as a court believes the right is valuable. 26 The same should apply to the Second Amendment.
III. A Right Broader and Narrower Than Its Justification
Some argue the justification clause should be read as a condition on the operative clause: The right to keep and bear arms is protected only when it contributes to a well-regulated militia, or only when the well-regulated militia is necessary to the security of a free State. Thus, one commentator says, because “the Framers included a preamble to the Second Amendment . . . [i]t is at least arguable that the only ‘gun rights’ protected by the Second Amendment are those that in fact support ‘the security of a free State´ — and that might mean none at all.” 27
Again, this seems inconsistent with the text, which contains no “only when” clause. What’s more, the text itself suggests that the operative clause is sometimes broader and sometimes narrower than its justification. The underinclusiveness of the operative clause is uncontroversial: The government is entitled to act in ways that are at odds with the Amendment’s justification, so long as it doesn’t deprive the people of the right to keep and bear arms. Congress has no obligation, for instance, to properly train the militia, or to demand that it be armed. 28 Congress may even take steps that might undercut the value of a well-regulated militia to the security of a free state, for instance by creating a standing army. 29
The overinclusiveness of the operative clause is likewise evident from the text. The operative clause says the right to keep and bear arms belongs to “the people.” Given that “the right of the people” is likewise used to describe the right to petition the government, the right to be free from unreasonable searches and seizures, and the rights to keep and bear arms recognized in various contemporaneous state constitutions — all individual rights that belong to each person, not just to members of the militia — “the people” seems to refer to people generally. 30 The justification clause, though, refers to the militia, which has always generally included pretty much all able-bodied men from age eighteen to forty-five 31 rather than all people. 32 People who aren’t in the militia, such as men over forty-five, 33 or those few whose professions have generally exempted them from militia service — such as ship pilots or post office employees 34 — don’t seem to further the purpose set forth in the justification clause, but their rights are still covered by the text of the operative clause.
Thinking about the other constitutional provisions further reminds us that we shouldn’t expect an operative provision to fit perfectly with its justification. Let’s return for a moment to the New Hampshire Venue Article:
In criminal prosecutions, the trial of the facts near where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 35
The operative clause doesn’t serve the Article’s purposes in every case: Some transfers from one county to another might actually bring the trial closer to where the crime took place. Likewise, the trial of facts in the vicinity where they happen isn’t always essential to the security of life, liberty, and estate — for instance, if the defendant and the witnesses are unknown to the jurors, the defendant lives as far from the proposed alternate venue as from the county where the crime was committed, and the proposed venue and the county where the crime was committed are demographically similar. Still, the provision means what it says: The trial must be in the county in which the offense took place. 36 The provision is quite explicit about what is to be done, regardless of whether the particular application of the provision would serve its broader purpose. Likewise, consider the New Hampshire Ex Post Facto Article:
Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences. 37
One can probably imagine situations where retrospective laws, especially civil ones, are not in fact injurious, oppressive, and unjust (or at least not highly so). 38 Even those who believe that all ex post facto laws are highly unjust would probably concede that some reasonable judges could take a different view. And yet the provision bans all ex post facto laws, not only the highly unjust ones. These provisions, like constitutional rights provisions more generally, don’t just announce a purpose and ask courts to do whatever the judges think fits the purpose. Their enactors could have done so — they could have broadly required “the trial of the facts near where they happen,” or required “the trial of facts in a way conducive to the security of the life, liberty, and estate of the citizen,” or banned “highly injurious, oppressive and unjust” laws generally. But they instead chose to impose much more specific constraints, constraints that are both over- and underinclusive.
Those who enacted the Bills of Rights apparently didn’t trust courts to decide for themselves what’s “conducive to the security of the citizen” or what’s “highly injurious, oppressive and unjust,” or even what’s “near.” They meant to constrain courts, not to leave them with complete discretion to do justice any way they think best. The enactors had broad ends in mind, but they chose to serve those ends by enacting into law some particular means. 39
So it is with the Second Amendment. The Framers may have intended the right to keep and bear arms as a means towards the end of maintaining a well-regulated militia — a well-trained armed citizenry 40 — which in turn would have been a means towards the end of ensuring the security of a free state. But they didn’t merely say that “a well-regulated Militia is necessary to the security of a free State” 41 (as some state constitutions said), or “Congress shall ensure that the Militia is well-regulated,” or even “Congress shall make no law interfering with the security of a free State.” Rather, they sought to further their purposes through a very specific means. 42
Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn’t further the Amendment’s purposes. As the other state constitutional provisions show, there should be nothing surprising in this. When you mean to check government authority, 43 you do this by imposing specific commands on the government, even if they sometimes don’t match your purposes perfectly, rather than by letting the government decide how it thinks the purposes can best be served.
IV. What the Justification Clause Might Mean
What then does the justification clause mean? It might have a political and educational goal — stressing to the public and government officials the connection between an armed citizenry and freedom, 44 just as other provisions may aim to persuade people about the desirability of “a more perfect Union” 45 or the virtue of local trials 46 or the importance of the liberty of the press. 47 But we still properly expect the clause, like all constitutional provisions, to have some legal meaning. To borrow from United States v. Miller, 48 the only 20th-century Supreme Court case that deals with the Second Amendment at any length, it seems reasonable to say: “With obvious purpose to assure the continuation and render possible the effectiveness of [the Militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” 49
I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can’t take away what the operative clause provides. And because we know that operative clauses may be at times broader and at times narrower than justification clauses, we should accept that the two clauses will sometimes point in different directions.
This might seem like a gossamer distinction, but it’s what we would try to do with regard to the other constitutional provisions I’ve mentioned above. 50 (It’s also consistent with the general rules of statutory construction used in the late 1700s and 1800s. 51) Does “no crime or offence ought to be tried in any other county than that in which it is committed” 52 prohibit hearings on preliminary motions — such as challenges to the sufficiency of an indictment — in another county? Since the justification clause says that “the trial of the facts in the vicinity where they happen is so essential to the security of . . . the citizen,” the term “tried” in the operative clause should probably be read as covering only trial of the facts, not determination of purely legal questions. 53 But I assume that we’d reject a construction that allows a trial in another county, no matter how close the other county might be or how irrelevant the venue might in this case seem to preserving “the security of the life, liberty, and estate of the citizen.” Likewise, when it is said that “any person may publish his sentiments on any subject,” 54 a justification clause stressing “the liberty of the press” can’t limit the right only to members of the institutional press.
“County” and “person” are, of course, particularly unambiguous terms; let’s consider a vaguer provision. Say that a person is on trial for publishing books condemning private property. He claims his speech is protected by a provision that says
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 55
The government argues that any speech that undermines “the security of freedom in a state” is per se an “abuse of . . . liberty,” and that the speech here undermines freedom because history shows that private property is necessary for freedom. 56 I take it that, though “abuse” is a vague term, we’d still try to make sure that the justification clause not trump the operative clause. We’d consider the fact that “abuse” seems to suggest harmful use, and not merely use that’s inconsistent with the liberty’s justifications; thus, we’d probably demand at least that the speech have some substantial tendency to cause harm. We’d also consider the fact that the operative clause is useful only if it’s a meaningful constraint on government discretion: If the government can suppress any speech that it believes in some way undermines freedom, then this constraint disappears. 57 We’d recall that the provision protects “the liberty of the press,” and not “conduct that supports the security of freedom in a state,” and that the operative clause can does not seem limited to speech that would directly serve the purpose expressed in the justification clause.
The line between interpreting the operative clause in light of the justification clause and interpreting the justification clause to trump the operative clause is of course fairly uncertain. Many problems of statutory construction are uncertain. But the various constitutional provisions I collect here suggest that the line must be and can be drawn.
Let’s consider a few questions raised by the Second Amendment. Whose rights does it secure? The Second Amendment says the right is “the right of the people”; the First, Fourth, and Ninth Amendments use this phrase to refer to an individual right. Early Kentucky, Massachusetts, North Carolina, Pennsylvania, and Vermont Bills of Rights speak of “the right of the people to bear arms.” 58 Since these provisions secure rights against the state governments, they must recognize a right belonging to someone other than the state or entities whose membership is defined by the state — this likewise suggests that “the right of the people to bear arms” refers to a right of individuals.
The justification clause can’t transform this rather unambiguous term into “the right of the States” or “the right of the militia.” (Miller, in fact, never suggested that it did. 59) True, reading “people” to refer to each person might mean that the right is somewhat broader than the justification, but one should expect the possibility of a mismatch between justification clauses and operative clauses: The means chosen to serve the end will often be somewhat broader or narrower than the end itself. But it’s the means that are being made into law.
What arms may be kept and borne? Here Miller might well have been right to consider the justification clause. Miller was indicted for transporting a sawed-off shotgun, in violation of the National Firearms Act of 1934. 60 There was no evidence introduced in any proceeding that this kind of weapon was useful to a citizen-militiaman, 61 and the Court held that such utility wasn’t so well-known that it could be judicially noticed. 62 The Court thus concluded that
[i]n the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 63
“[A]rms,” unlike “the right of the people,” is used only once in the U.S. Constitution, and rarely in early state constitutions. Its meaning isn’t made clear by these provisions, and it’s plausible to interpret it as referring to something less than all the weapons known to humanity. Reading “arms” as referring to weapons valuable to people as members of the militia thus seems textually consistent with the operative clause. It also doesn’t nullify the right by making it easily evadable by those whom it’s meant to constrain.
What about a claim that, say, “to keep and bear arms” refers only to people’s keeping arms in state-run arsenals, and bearing them while they are under the direct command of state officers? This position seems inconsistent with the operative clause (and again Miller did not hold this). 64 As I mentioned above, a right of the people to bear arms (or to keep and bear arms) is present in the pre-1791 constitutions of four states; because this right against the state government can’t be at the sufferance of the state, “the right of the people to bear arms” seems to have meant a right to have arms even without state authorization. The Indiana, Kentucky, Missouri, Ohio, Pennsylvania, and Vermont provisions guaranteeing the right of the people to bear arms in “defense of themselves and the State” 65 likewise suggest that “bearing arms” meant more than just bearing them under state control. What’s more, under the Militia Clauses, the federal government could at any time take direct command of the militia away from the states. 66 If the right was only a right to possess arms under the supervision of one’s militia superiors — who might well be under federal command — then the right would impose little constraint on the federal government.
Referring to the lessons learned from the other constitutional provisions won’t turn interpreting the Second Amendment into a mechanical process; no interpretive theory can promise this. But the other provisions do show that it’s possible to interpret an operative clause in light of a justification clause without reading either out of the constitutional text, and without incorrectly insisting on each being coextensive with the other.
For better or worse, interpreting legal texts is a mushy business. Lawyers who support a particular result on policy grounds can often come up with an interpretation that reaches this result, and even persuade themselves that it’s the best interpretation.
At the same time, I write from the premise that interpreting a text is not the same enterprise as reading the text to achieve whatever policy result one prefers. Legal texts should to some extent constrain their interpreters, and interpreters should try to subordinate their policy views (even if they cannot ignore them entirely) to the inquiry into what the text says. Sometimes, the interpreter must say, “Too bad, the best reading of the text is one that produces a result I dislike, but I guess I’m stuck with it.” Interpretation means sometimes having to say you’re sorry.
One way of testing one’s interpretive approach — of distinguishing honest interpretation from mere inscription of one’s own policy preferences on the text — is 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.
My modest discovery is that the Second Amendment belongs to a large family of similarly structured constitutional provisions: They command a certain thing while at the same time explaining their reasons. Because some of the provisions appeal to liberals and some to conservatives, they offer a natural test suite for any proposed interpretation of the Second Amendment. If the interpretive method makes sense with all the provisions, that’s a point in its favor. But if it reaches the result that some may favor for the Second Amendment only by reaching patently unsound results for the other provisions, we should suspect that the method is flawed.