Apropos today's Supreme Court decision to hear the D.C. Second Amendment case, I thought I'd post the final version of my "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1 (2007), which is forthcoming in a week or two. Here's the Introduction (materially changed from the earlier version I posted some months ago):
“A well regulated Militia, being necessary to the security of a free State,” the Second Amendment says, “the right of the people to keep and bear Arms, shall not be infringed.” But what did the Framing generation understand “free State” to mean?
Some say it meant a “state of the union, free from federal oppression.” As one D.C. Circuit judge put it [dissenting in the case that the Court has just agreed to hear -EV], “The Amendment was drafted in response to the perceived threat to the ‘free[dom]’ of the ‘State[s]’ posed by a national standing army controlled by the federal government.” Or as a lawyer for one leading pro-gun-control group wrote, “Presumably, the term ‘free State’ is a reference to the states as entities of governmental authority. Moreover, the reference to the ‘security’ of a free State must have something to do with the need to defend the state as an entity of government.”
This reading would tend to support the states’ rights view, and is probably among the strongest intuitive foundations for the view—after all, “State” appears right there in the text, seemingly referring to each state’s needs and interests. The reading would suggest the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment doesn’t apply outside states, for instance in the District of Columbia: “‘the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it’” [citing the D.C. Circuit dissent].
But if “free State” was understood to mean “free country, free of despotism,” that would tend to support the individual rights view of the Amendment. “[T]he right of the people” would then more easily be read as referring to a right of the people as free individuals, even if a right justified partly by public interests, much as “the right of the people” is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were selected for a state-chosen defensive force, since the right would not be focused on preserving the states’ independence. And it would apply to all Americans, in states or in D.C. [citing the D.C. Circuit majority].
We see a similar controversy about the change from James Madison’s original proposal, which spoke of “security of a free country,” to the final “security of a free State.” Some assume the change was a deliberate substantive shift towards a states’ rights provision, and point in support to the Constitution’s general use of “state” to mean state of the union (except where “foreign State” is used to mean “foreign country”). Others assume the change was purely stylistic, and thus did not reflect a shift to a states’ rights view; they sometimes point for evidence to the absence of recorded controversy about the change.
This Article makes a simple claim: there’s no need to assume. There is ample evidence about the original meaning of the term “free state.” “Free state” was used often in Framing-era and pre-Framing writings, especially those writings that are known to have influenced the Framers: Blackstone’s Commentaries, Montesquieu’s Spirit of Laws, Hume’s essays, Trenchard and Gordon’s Cato’s Letters, and works by over half the authors on Donald Lutz’s list of thirty-six authors most cited by American political writers from 1760 to 1805. It was also used by many leading American writers, including John Adams in 1787, James Madison in 1785 and the Continental Congress in 1774.
Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase “free state” meant at the time. In eighteenth-century political discourse, “free state” was a commonly used political term of art, meaning “free country,” which is to say the opposite of a despotism.
Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.
“State” simply meant country; and “free” almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.
Even given this finding, of course, many important arguments about the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase “a free State” was not understood as having to do with states’ rights as such. Rather, it referred to preserving the liberty of the new country that the Constitution was establishing.
Related Posts (on one page):
Regardless, isn't there a strong argument that the Court cannot ignore the first part of the Amendment to reach a holding that renders it superfluous? If so, there has to be more to the rule than just "individuals have the rights to own guns."
Art. I, Sec. 8, cl. 8 (the copyright and patent clause) likewise reads, "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
As far as I know, the Court has never held that Congress lacks the authority to grant copyright protection to something which does not promote the progress of Science, or to prohibit the grant of patents to frivolous inventions which are not part of the useful Arts.
One could argue that the purpose clause serves as an underscore to the Second Amendment: this is so fundamental to our freedom that it cannot be ignored.
Regardless, the Second Amendment (as were the first 8 Amendments) is meant to apply only against the federal government. It would be strange, indeed, to allow Congress such an exception to an otherwise blanket prohibition. Would the Founders really have intended that States, in fighting the tyranny of a federal government, not be allowed to set foot in Washington, D.C., with their guns? that the fight would have to end at the Potomac, lest the militia-men be in violation of federal law?
...although, as EV points out, it is all really a moot point, given the meaning of "free State."
State, the right of the people to keep and
bear Arms, shall not be infringed.”
What if we read the second part "the right of the people to keep and bear Arms, shall not be infringed" in the context of "Well regulated" as in the need for a regulated militia but there will be no infringement on personal rights. The framers are then pointing out the need for controls but clearly defining the individual rights.
other examples:
bill of rights has a right to indictment..but it isn't fundamental so it doesn't apply to states (only feds)
bill of rights has a right of freedom from excessive bail..but it isn't fundamental so it doesn't apply to states (only feds)
so i think its a little early so say this is bigger than roe vs wade as some commentators are here.
EV pointed this out way back when they filed for cert..but it keeps getting lost in the shuffle.
But was this discourse conducted in the context of the principles governing a federal republic? In the context the framers were operating in, the word "state" has two possible meanings. That was not so in the writings you are talking about.
I notice Prof. Volokh somewhat addressed this issue in footnote 168, writing:
But why not read the purpose of the Second Amendment as protecting the states as nondespotic (free) states, by making sure that the federal government could not disarm the people and thus could not facilitate the growth of a despotic FEDERAL government? Isn't that exactly the argument that James Madison made in Federalist 46? ("Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.")
Lovely theories aside, the practicalities of this issue seem really, really clear, and equally one-sided. The text of the amendment isn't limited to handguns or othe weapons that NRA members enjoy owning, so if the 2nd Amdt. were really motivated by a concern with keeping the government honest, it's hard to find a constitutional principle that, if adhered to strictly, would simultaneously forbid the government from banning firearms but would permit the prohibition of deadlier weapons. So you're left with two questions: Is the judicial regime going to suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin? And if not, is the judicial regime really going to want to commit to developing doctrine that separates protected arms and those arms that the government may forbid? The answers seem obviously: No, and Maybe at first, but not for long after that.
if that happens..and the court is forced to allow asault wepons becuase of its decison in this case..
than thre would be a lot of support for constitutional amendment banning assualt rifles woudnt there?
I think a third question might be, are these questions for the courts to decide in a supposedly free republic.
Looking throught the Constitution, I see nothing which grants the Supreme Court the authority to "suffer a rule that grants Americans the constitutional right to weaponized Sarin neurotoxin". Or to not suffer it.
If we are remotely serious about being a republic under "government of the people, by the people, for the people", we need stop allowing the courts to assume powers which are not theirs.
In nineteenth-century political discourse, “free state” was a commonly used political term. Maybe the RKBA was enjoyed by citizens of Massachusetts and New York, but not by citizens of "slave states" like Maryland and Virginia, from which D.C. was made? :-)
The important change would be in the level of scrutiny gun regulations would be forced to endure, (they would be subject to strct scruting just as regulation of speech is) and the absolute banning of gun ownership would be unconstitutional.
So you can allow the open carry of handguns, without leaping to nerve gas for everyone.
The courts certainly haven't had difficulty "developing doctrine that separates protected [expressions] and those [expressions] that the government may forbid." Agree with it or not, time, place, and manner restrictions have a long history.
By way of contrast, do you think the courts would be anxious to develop a doctrine of state preemption of federal gun laws if the 2d Amendment is found to protect a "state" right?
No. "Troops" and "the army" are expressly provided for in Art. I.
Since the missions of the militia are defined, then we ought to be able to define weapons necessary for those missions, as protected by the 2nd Amendment, since the militia is "necessary." Hint: a well regulated militia can't be limited to the posession of single shot .22 rifles since they won't do the job in the case of any of those missions. If you bother to read Miller, this was in fact one of the issues of fact which the Supes directed lower courts to deal with (short barrelled shotgun a militia weapon) when they remanded the case.
Perfectly put. I'd like to hear someone from the collective rights side argue why the 2nd amendement shoehorned the right of the federal government to arm the national guard into a list of protections from the federal government.
In my opinion the collective rights argument is only self-consistant in a vacuum. In context of the Bill or Rights it makes no sense. If like to hear the rebuttal to that if anyone is game.
For the sake of argument, let's stipulate all of the pro-control arguments about the preamble and rewrite the 2nd amendment accordingly, with one change, namely, we'll take guns out of it.
"Well educated civil servants being necessary to the functioning of good govt, the right of the people to keep and read books shall not be infringed."
Would anyone seriously argue that such an amendment allows "book control", that it doesn't protect an individual right?
The preamble can have meaning without placing restrictions on an individual right. One of the accompanying paper's to Levinson's "The Embarrassing 2nd Amendment" argued that the 2nd's preamble requires some limits on federal military structure and power. (I forget the title and author's name.) If you buy Volokh's argument about "free state", the same argument also limits state forces.
EV made reference in his article that “A well regulated militia.. “ was a purpose clause while the “right to keep and bear arms is the operative clause – However is there a logical basis to argue that the second amendment really creates two rights 1) the individual right to keep and bear arms and 2) the right of a free state or free society to maintain a well regulated militia which is separate and apart from the army or navy as provided in Article 1 section 8?
if that happens..and the court is forced to allow asault wepons becuase of its decison in this case..
than thre would be a lot of support for constitutional amendment banning assualt rifles woudnt there?"
Ummmm,
Do you mean true assault rifles, with select (machine gun) capabilities that have been tightly regulated since 1934?
Since the import ban of 1986 the price on any true select-fire assault rifle has gone through the roof, a registered "real" M-16, AK-47 or AK-74 complete rifle, or the registered receiver alone, sells today North of $18,000, not counting the $200 tax stamp. Even a crappy MAC-9 "jam-o-matic" now sells for over $5,000 and it's just about $30 worth of stamped sheet metal.
Or do you mean the phony term "Assault weapon" used to describe modern looking semi-automatic rifles that resemble military weapons like the AR-15, the most popular target rifle inthe shooting sports?
The 1994 "Assault Weapons" ban lapsed 3 years ago. In spite of all the dire warnings and rabid editorial rhetoric about the world coming ot an end if it did, the blood isn't running in the streets yet.
But you can always count on 'em. The Brady Group had a fund raising appeal out to their mailing list in less than 15 minutes after the news, asking for an "emergency $50,000 in funding to support the development of the Amicus Brief for the most important case in history".
I wonder if it will still be the "most important case" if they lose the collective argument, which, to an outsider, it looks pretty grim for the collectivists so far?
I hope Mayors Daley and Bloomberg have a terrible night's sleep from now till the hearings and keep getting up and disturbing their armed security details to get them a glass of warm milk.
You bring up the similar syntactic construction of the copyright clause. A few years back, Larry Lessig of Stanford argued to the Supreme Court that after-the-fact copyright extensions did nothing "to promote the Progress of Science and the useful Arts" and so were unconstitutional. He lost pretty badly.
I never would have thought that this had any bearing on 2nd Amendment cases, but who knows?
crime didn't come to an end either.
I'm no 2nd Amendment expert, but I do have plenty of experience watching the Court and observing its skill at splitting the difference, even when such Solomonic baby-splitting cannot possibly be sustained by the Constitution.
The Court could adopt an individual rights view that accepted that the purpose was to provide security against crime, invasion, and oppressive government, while still allowing for limitations on the types of weapons allowed. Insurrections from the Warsaw Ghetto Uprising to the insurgency in Iraq show that tiny numbers of motivated resistance fighters with small arms can cause great difficulty for highly skilled armies. The Court could say that small arms would be sufficient to form a "well-regulated militia" that would preserve the "security of a free state," and that the states could regulate any weapons that exceeded that amount.
Again, I'm not an expert on the amendment. To me the most logical reading reveals that there's a right to a Ohio-class nuclear submarine if you have enough money for it. But the Supreme Court is never, ever going to announce that right.
The Court would surely uphold the power of Congress to grant copyrights and patents even without the strict grant of that power in Article I. Why? Because there's no doubt that patents and copyrights involve or have a substantial effect on interstate commerce, at least as much as growing wheat on your farm for private consumption does.
Seems to me that the National Guard as Militia argument is therefore moot, since no state's National Guard could operate independently of the federal government. Where, then, is the Militia for the free State?
Curt -
Thank you for reminding me. I recall (vaguely) that the copyright extension caused some sort of fiasco w/r/t the intro to Art. I, Sec. 8, cl. 8, but that no one bought the argument.
Generally, all free, able-bodied men between certain ages; that excludes Miss Brady, although there may be an Equal Protection issue there. ;)
I'm not sure which side you want debated with that, but I think it underscores the idea of the Second Amendment protecting an individual right. Otherwise, the right would be limited to those in the militia (which is not a substantial limitation, given the broad construction); however, such a limitation is one easily overridden by the States, at their own will. That would create a situation in which a state could substantially gut a federal regulation (i.e. a prohibition against non-militiamen owning or carrying guns) through its own legislation (i.e. expanding the definition of "militia" to include everyone within its borders). That would also create the situation in which the federal regulation in question would apply differently to identical persons, merely by their presence in certain states.
In 18th-century America, a well regulated militia was ordinarily one that was well regulated by law.
Every few years, Pennsylvania enacted legislation similar to one in 1777 which was titled,"An Act to Regulate the Militia of the Commonwealth of Pennsylvania." The act was chuck full of rules and regulations.
Is it possible that the Framers were not referring to any entity but instead were referring to a condition in life, a state of being, to wit freedom?
Reading thusly, “A well regulated Militia, being necessary to the security of a free state of being, …”
If mine is an alternative phrasing the Framers could have used to arrive at the meaning they intended, then the notion that the Framers intended possession of arms to be guaranteed only subject to permission of a (governmental) state, or in the service of a "state" would be hard to defend.
I believe this interpretation is a cousin to EV’s notion … “But if ‘free State’ was understood to mean ‘free country, free of despotism,’ …
I dont know about that- no liberty is without limit. Consider the fire in the crowded theater chestnut. I think a fair reading is that the weapons a foot soldier might be expected to carry are protected- this was the line Miller tried to walk. The only problem with Miller in my mind is their lack of sophistication- a sawed off shotgun is most definately a reasonable weapon for a grunt to tote (demonstrably, over the year). This might preclude squad type weapons such as mortars and heavy machine guns, but certainly not 'assault rifles' however you define the term. Anything requiring a military infastructure would be right out, and hence most of your big ticket mass killing systems. Aside from being a very reasonable line, this is pragmatic in the sense that it requires a great many people to build, field, maintain, and deploy something like a tank, submarine, or WMDs. Hence there is a societal involvment inherint in the process- no one person should necessarilly be entitled to its use. A rifle, even a machined semi-automatic rifle, can be argued to be something an individual could at least maintain and use. There is a division of responsibility meme somewhere in that.
If the purpose of the militia mentioned in 2nd Amendment is to guard against a tyrannical government, the militia must have sufficient firepower to do so. Were private citizens forbidden from owning mortars, field artillery, or siege cannon in the 1790s? If they were, then I'd concede your point. If not, then I have to conclude that the militia has the right to match the oppressive government's Apache helicopters.
I don't like this result very much, either. Certainly I think that private citizens armed with small arms are enough to provide for the security of the state. But I don't think that the Amendment requires that the militia only be armed to bare minimum necessary. To conclude that it does requires non-textual baby-splitting because we like the result.
Art. I, Sec. 10, cl. 3 prohibits states from keeping troops without the consent of Congress, which implies some distinction between the constitutionally-protected right to a "militia" and the prohibition on "troops." The latter are presumed to undergo regular training, be divided into regiments, and have enlistment guidelines. Pressner v. Illinois (1885) addressed this, in part. It would be difficult to use an Apache helicopter as part of a "militia" that does not undergo regular training and is not divided into regiments.
...well, that and you can't bear a helicopter, cannon, or tank. ;) (Hat tip: Justice Scalia.)
Wait - you think the militia did not undergo regular training, were not divided into regiments, and did not have enlistment guidelines? The last were pretty weak (little more than age requirements), but the late 18th-century militia drilled regularly and was organized into regiments.
I suspect it differed by state, but i am no expert. Regardless, if the 20th century (and the current century) has taught us anything its that a popular resistance armed with AK-47s and grenades can be more than a match for a professional army. Whats the real utility of a citizen having a tank? The occupying military would make mincemeat of it as soon as the baloon went up. On the other hand a bunch of guys with rifles blending into the population is a tried and true resistance method.
crime didn't come to an end either."
Nope, but with rifles of any kind accounting for under 3% of crimes involving guns, I don't know that anyone really thought it would come ot an end anyway.
No one that was against the "Assault Weapons Ban" thought it would have any impact on crime, one way or another.
It was the fine folks on the other side, Brady, major metro newspapers, WP, Chicago Tribune and the always reliable NYT et. al. claiming that once the ban lapsed that police will be at risk, criminals will start an arms race with police and murders with these "fast shooting, high powered, repeating weapons will skyrocket". I guess their editoiral boards are still waiting for the crime reports to come in.
Do you really expect gun legislation to have any impact on crime on a macro basis? The 48 states that allow concealed carry have noted a small reduction inc rime but nothing that can statistically be linked to CCW legislation. OTOH, the criminal records of CCW holders have proven that the folks that go through the hoops to get a license are much more law abiding than their counterparts in the general population.
The right to have or carry a personal defense weapon will have an impact on a very small percentage of the population and it will be on a very personal basis. Defensive gun uses, ranging from just displaying to actual use of a firearm, range from estimates of 1.5 million on the low end to as high as 3 million every year.
Outside of military service I've had two occasions to display a weapon and was glad I had it at the time and even happier that i did not have ot use it.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Surely it wasnt intended that the states had the right to form and arm a national guard to deter the federal government, but only with the consent of Congress?
Either that reading is faulty or the 2nd was intended to amend Article I, in which case there would have to be some scholarship indicating that was the intent.
“[A]t last a Committee is appointed to prepare a Draught of Confederation, and a Declaration that these Colonies are free States, independent of all Kings, Kingdoms, Nations, People, or States in the World…”
Each free state needed its own well regulated militia. Its security depended upon it.
It would be useful if I was seeking a letter of marque or reprisal.
I could make the argument that since submarines are the primary tools of power projection today (as wooden-hulled vessels were in the Founding Fathers' period) and that the trident missiles are the primary armament of those submarines (as cannons were then, and cannons were provably privately owned and operated on privately owned and operated vessels) that the FF would be in favor of private ownership of Tridents...
Is it a valid argument? I have no idea; but it is a valid argument for private ownership of weaponry up to at least crew-served artillery pieces; as up until very recently, historically speaking, that was legal (technically, still is federally-speaking - Civil War re-enactors own and operate a fair number).
FREEDOM. When it comes to privacy and search &seizure issues, people seem to understand that constitutional law isn't just a policy debate — in other words, we aren't just looking for the hypothetical "best" outcome — but rather, what it means to be American.
The argument goes like this: if you want to curtail freedoms, you better bring your lunch money to the argument. Speculating about what some preamble means (i.e., "A well regulated militia...") to open the door to an outright ban of guns doesn't qualify in my book.
Guard your freedom.