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Blast From The Past

American Bar Association, The Journal of the Section of Litigation
Robert E. Shapiro

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

By almost any standard, the Second Amendment is a rather unusual constitutional provision. It is phrased in a peculiar way, with a perplexing preamble, at least one seemingly errant comma, and a main clause that is as opaque as it is simple. Its reference to the "militia," calling up images of men in knee-britches carrying flintlock rifles, emphasizes, more than most provisions, its close connection to the eighteenth century founding of the country. And it has been left pretty much alone over the years, passed over with very little comment by a Supreme Court that has been called upon to opine on most other parts of the Constitution, and especially the Bill of Rights, repeatedly and extensively.

Left alone, that is, until District of Columbia v. Heller, ___ U.S. No. 07-290 (S. Ct. decided June 26, 2008). The now much discussed Heller decision represents the first time the Supreme Court has confronted the Second Amendment head-on, turning Heller into as close as one comes these days to a constitutional case of first impression. And in more than one respect. It is not just that the Second Amendment has not been comprehensively analyzed before. With its direct link to colonial history and references to both a "right" and group action, the Second Amendment presents a kind of test case of how the Constitution balances individual and collective rights and obligations, which is, after all, what much of the Constitution seems to be about in the first place.

Also at issue in Heller was whether the Constitution still has something relevant to say on that subject in these all-too-modern times. For what had thrust the Second Amendment into prominence in Heller were the very intense contemporary debates about the pressing public issues of urban violence and gun control. Whether you are for the latter or against it, and even if you prefer to think about the matter primarily on policy grounds rather than constitutional ones, it still would seem useful or at least interesting to know what the founders might think about such an issue, or at least how any such controversy about it might be resolved under their auspices, or even whether it could be resolved on that basis. A case directly construing the provision unfiltered by the intervening years of constitutional decision making would thus seem to be a cause of real excitement, not just for the legal community, but for the American polity generally.

Here it was, in effect, a "classic confrontation" of the first order, an opportunity to think about how the founders resolved the tensions between individual rights theory and the immediate needs of public safety, the application of a provision that seems as much as any in the Constitution to reflect the founders' unusual way of describing things to a matter of public concern as up-to-date as the iPod. Surely, we were to learn in Heller how the founders viewed the interplay of such issues and, not coincidentally, what relevance those views should have for our own modern understanding of our own polity.

Unfortunately, by these standards, the Heller case is a flop. You will not find in Heller any real analysis of how individual rights and social interests interact in the Constitution generally, let alone how and how well the founders' view of these issues works in our contemporary world. Indeed, in some respects, we have gotten exactly the reverse. One of the striking things about Heller, when you look at it from 15,000 feet, is how the supposedly liberal and conservative wings of the Court have switched places. The so-called conservative majority, per Justice Antonin Scalia, insisted in characteristically liberal fashion that the individual rights he divined in the provision mostly trump the activity of legislatures he has else-where championed. The "liberal" dissent of Justice John Paul Stevens, meanwhile, contended as any conservative might that this provision in the Bill of Rights, even though listed right after the jealously guarded individual safeguards of the First Amendment, does not really refer to any fundamental individual rights at all and allows legislatures to do what they will on the subject essentially unchecked. A second "liberal" dissent, per Justice Steven Breyer, adds for good measure that, even if there is an individual right at issue here, the activities of legislatures necessarily trump it in this context so long as they are "rational." It is more than a little difficult to understand who is "liberal" and who "conservative" here.

Nor are these the only oddities you would find in the decision. Strange it is, to say the least, that the conservatives insist that one need pay no heed to how any individual right to "keep and bear arms" intersects with the balance of federal and state power, while the liberals argue that the provision is all about what the federal government can do vis-à-vis the states. To say that a reversal of roles of this kind has the odor of result-oriented opinion-drafting is a bit of an understatement. Liberal and conservative lined up according to the contemporary definitions, not constitutional ones. Just as in everyday society, Supreme Court liberals will make the effort to control guns, conservatives will oppose it. And real constitutional analysis is left aside to play no part in the analysis.

This is not to say either that any of these opinions is right or wrong or that any of them does not at least affect to undertake what passes for constitutional analysis these days. But there is less to all this than meets the eye. Take Justice Scalia's supposedly literalist analysis for the majority, for example. It begins with a dissection of the words of the provision themselves. This is not a bad place to begin if we want to know what the amendment means. The words make a difference. But words do not operate in a vacuum, and the very same words can mean very different things in different contexts. Hamlet notes that his Uncle Claudius' s practice of setting off cannon as he quaffs his toasts would be "more honored in the breach than the observance," given how it makes his fellow Danes seem like a bunch of rubes. Today, outside the context of Shakespeare's play, we use the same words to lament that a good practice is not more often followed.

It is no answer to this problem to consult, as Justice Scalia does, an eighteenth- century dictionary. Dictionaries are seldom definitive; they serve as interpretive devices that try to make sense of the various ways words are used in a contemporary setting. They rarely settle clearly on a single view nor can they authoritatively describe how a particular man or group of men intended to use even a single word, let alone a phrase or sentence. As a measure of the first problem, think about the various contemporary uses of the word "awesome" or, a bit more subtly, "presently," which began by meaning "soon," and then became "now," and now can be used for either. As for the second problem, the Second Amendment was drafted by men of great learning and intellectual stature who chose their words advisedly. The great founder Noah Webster aside, do we have any reason to know or believe that the publishers of Justice Scalia's dictionary were of the same caliber as the men whose words they were interpreting or even able to understand them clearly? And even if so, wouldn't it be so much better to consult the thinking of the drafters directly?

Justice Scalia, however, never investigates directly the thinking of any founder, not even James Madison, who originally drafted the provision. There are, to be sure, some scattered references in Justice Scalia's opinion to the writings of James Wilson. But these are all the more perplexing for never being investigated more fully. Here was an outstanding member of the founding generation, one of only a few men who signed all three of the Declaration of Independence, the Articles of Confederation, and the Constitution itself. Regarded by many as the foremost authority in the colonies on William Blackstone' s Commentaries on the Laws of England, Wilson was appointed one of the first associate justices of the Supreme Court. Justice Scalia notes that his eminent predecessor discusses a right to bear arms in the context of a discussion of "natural justice." But then he probes no further. Oughtn't we to know something more about what Wilson was thinking?

Beyond this, Justice Scalia offers a perfunctory discussion of the English Bill of Rights and a brief mention of Blackstone himself, both reasonable sources to consult. But there is no detailed analysis of either of them, or really any analysis of how they conceived of the issue at all. These references seem a kind of window dressing for the primary focus of the discussion, which is first on some then-contemporary legislation and constitution-making in the states, none of which is particularly compelling, and then the various debates and commentaries about the amendment thereafter. Neglected in all this is any attempt to understand how a "right to keep and bear arms" might fit into the broader thinking of the revolutionary and founding generations themselves.

In dissent, Justice Stevens remedies some of Justice Scalia' s deficiencies, at least trying to trace how Madison came up with the formulation he did. But why he came up with the formulation he did remains something of a mystery. Justice Stevens posits the not unreasonable idea, particularly in light of the amendment's preamble, that the right to bear arms was understood as connected to the states' interest in maintaining and keeping control over a militia. But the question is whether that is all the founders under-stood by a right to bear arms. Somewhat in contrast to our modern tendencies, the founders were rather chary of using this word "right" because of its great weight. They did so pretty much exclusively in connection with non-pre-governmental activity, governments being "instituted" to "secure these rights," not create them. What is a "right to bear arms" in the first place (for that, after all, is the right addressed in the amendment)?

To find out what that right is, and whether it relates solely to the militia or not, we would seem to need to know where and why any such right might arise and what role it might play in the context of the founders' constitutional theorizing generally. Justice Stevens goes some ways toward this by talking about why the amendment may have been thought necessary in the first place, noting the founders' concerns about encroaching federal control over state militias in the expected absence of a significant standing army. In this, he drew support from the amendment's preamble. But it is a long way from there to the conclusion that the right referred to in this context is limited to use of weaponry only in the organized armed forces. If the amendment were designed to limit federal control of militias, wouldn't it have just said so instead of using this word "right," which, as Wilson's reference to "natural justice" itself implies, exists independent of governmental power? There is something anomalous about acknowledging a natural right in the Bill of Rights solely for the purpose of ensuring the continuing constitutional force of state power.

For a better way to try to understand what is meant by a "right to keep and bear arms," it would seem sensible, even essential, to look to the natural rights theory, and theorists, upon whom the founders themselves said they relied. The refusal of the current Supreme Court justices, whether liberal or conservative, to undertake this inquiry is one of the more vexing and perplexing aspects of the modern Court. Oh, the justices have their reasons, of course. The conservatives question whether the undertaking could ever be successful, so different and conflicting are the views expressed by the historians, and even the founders, about what natural rights are. But since when has any justice shied away from such controversy in other contexts? And why should they, if profound social issues are at stake? And does it make any sense to fall back on a simplistic account from a dictionary merely because a potentially more complete and accurate analysis is difficult to achieve?

The liberals, meanwhile, often seem to see little point in the analysis. The Constitution, they say, is a living document that must be interpreted according to contemporary standards. Heller, unfortunately, shows what such standards tend to mean, denying any real force to the constitutional scheme whatsoever, following instead whatever contemporary trends seem to call for. Justice Stevens's dissent also demonstrates that a more historically rooted analysis is just fine when it serves his purposes. And, in any event, before one rejects the founders' point of view in favor of contemporary norms, wouldn't it be useful to know what we are tossing aside?

One wonders, moreover, where the idea got started that the roots of the founders' thinking on rights and governmental power are so difficult to fathom. In fact, all roads in this case seem to lead to the same source. Whether one is interested in the natural rights arguments studied by the most theoretical of the founders, or insight into the English Bill of Rights, or even an analysis of the practical work of legal compilation undertaken by Blackstone, one name keeps popping up as critical to the analysis. And that name is John Locke.

Locke is literally all over the thinking behind the founding documents. Locke it is who posited the natural rights Jefferson paraphrases in the Declaration of Independence. It is Locke who propounded ways of having those rights continue to operate and stay protected in the context of civil society, through his views on legislative authority and the separation of powers that are reflected in the Constitution. Not coincidentally, Locke can also be understood as connected to each of Justice Scalia' s pre-constitutional authorities. Whether you view him as a cause of or mere apologist for the Glorious Revolution, Locke's thinking is prominent there. And it takes only a brief look at the organization of Blackstone' s Commentaries to see Locke's influence in that great compilation as well.

This is not to say that Locke's thinking is easy to understand, let alone that one can fathom immediately or completely what use the founders thought appropriate to make of him in their own drafting. This requires a long discussion. Still, so prominent was Locke's role in their explication of natural rights and their continued operation in civil society that it is useful to look back at some Lockean fundamentals to see if they might be helpful in resolving the natural rights controversy suggested by the Second Amendment.

Interestingly, a continuing right to bear arms makes perfect sense in Locke's view of the world. It goes something like this. Man in the state of nature is an egotistical being who pursues his own interest. Because of the dangers that sometimes exist in the state of nature, however, man decides to enter civil society and forms a government, the job of which is to protect him from other men who are up to no good. As such, the use of force, the right to bear arms as it were, is in some respects transferred to or at least implemented through the government. But Locke is not so naive as to think this solves the entire problem. There are cases in which whatever force the society has available to handle threats to one's safety may not be readily available. Put very simply, what happens when the cops aren't around to protect you?

The answer is that you have a right to protect yourself, individually or collectively. The reason is set out clearly in the Declaration of Independence, for the right to life is, as it puts it, "unalienable." If society cannot protect your life, you have the right to do it yourself, a right so fundamental that you even have the right to do it when society is the source of the problem. It is difficult to imagine that the founders, who were steeped in Lockean theory, were unaware of Locke's consideration of this issue. Nor is there anything in either Blackstone or the English Bill of Rights, or anywhere else in either the common law or pre-revolutionary theory, to upset this conclusion. Might it not seem relevant to the interpretation of a provision that invokes a right to bear the arms that are necessary for that purpose?

If there is any merit to this admittedly simplistic analysis, it does not begin to decide the matter. To begin with, there remain anomalies in the text of the amendment, not least that the right at issue is said to arise in "the people," rather than individual persons. This might lend force to the idea that the "right" refers to service in the militia, as Justice Stevens believed the preamble implies. But there are powerful reasons to conclude otherwise. Rights are natural in Locke's view; governments are not. It is possible that the only way a right of bearing arms, of protecting oneself, continues to operate in society is by way of the militia, but that seems not to fit with Locke's understanding, not least because the need could arise, often decisively, where organized governmental action is neither likely nor possible.

On the other hand, to say that a right exists, and that it might continue to operate notwithstanding organized governmental behavior, does not mean that government has nothing to say about the matter. Certainly, Locke would never go so far. One of the fundamental natural rights he saw, for example, was a right of property. But Locke understood that government could tax landowners. A right does not preclude governmental action in every respect. It sets limits, however, on what governmental action is permissible.

This conclusion points up another of the great deficiencies in Justice Scalia's approach to the matter. Assuming it is true that Locke, and the founders, would view a right to bear arms as a necessary concomitant to the inalienable right to life, which continues to apply in civil society, it does not necessarily follow that there can be no restriction on it at all. Even Justice Scalia does not seem to think so; he expressly acknowledges that some gun laws might pass muster. But which ones? And how is that to be determined? By the text of the amendment itself?

The text of the amendment suggests a narrow range of legislative action, though no one saw fit to comment on it. Pretty much escaping any analysis in any of the justice's opinions is the word "infringed," with which the amendment concludes. Curiously, Justice Scalia never picks up his dictionary to decipher this concept. It would seem to be a pretty strong word, as limitations go, and one wonders how, under a literalist theory, any law that limited guns would not be said to have "infringed" the right to bear arms, as Justice Scalia describes it.

Still more perplexing is the way in which Justice Scalia does decide what is permissible in the particular instance before him. Having established that there is in fact an individual right to bear arms, but still acknowledging that some restrictions might be permissible, Justice Scalia resolves the potential conflict merely by noting that handguns are the weapon most frequently used by people to defend themselves and their homes in modern times. Ipso facto, a law precluding them altogether cannot be consistent with a right to bear arms.

This is a nonsequitur. If, for whatever reason, AK-47s or howitzers became the weapon of choice, would this make their restriction unconstitutional? Or what if some side weapon of mass destruction is developed and becomes instantly popular? Does it thereby become protected against all comers? Note, also, that there is a certain self-fulfilling character to Justice Scalia' s analysis. The weapon of choice may in fact be that weapon that is permitted. Justice Scalia rejects as ridiculous the notion that, because handguns were not around in the revolutionary period, they cannot on that basis alone be viewed as outside the protection of the Second Amendment. If this is true, isn't the converse also true? Just because a weapon is now the weapon of choice should not mean that a restriction on it is barred by the amendment either.

Locke offers some assistance here too, though it is not of the sort anyone much cares for these days. This has to do with the way he understands the relationship between government and individual rights. The problem with government, according to Locke, is that the power to protect a person's inalienable rights to life, liberty, and property can easily be turned into an oppressive force. One solution, according to Locke, is that no man in civil society must ever follow a law that he did not make for himself.

For Locke, this is what a representative legislature is all about. A truly representative legislature acts for the people themselves in making the laws that apply. The people themselves originate the laws they must obey. There are, of course, many other devices that are necessary to make this work properly, including the separation of powers, which Madison, following Locke and Charles de Montesquieu, viewed as a republican solution to some of the dangers of and to republican government. But it is a central part of the founders' thinking. It is why Article I of the Constitution is devoted to Congress. And it is one of the reasons that Madison originally believed no bill of rights was necessary for the Constitution. He thought the processes built into the Constitution, including Congress and the electoral processes that controlled it, were consistent with, and the best protection of, individual rights.

What this does is cast the light back on the critical question Justice Scalia never addresses. Even if there is a right to bear arms, which may not be infringed, how is it to be decided what rules and regulations are consistent with it? Justice Scalia would seem to leave it to chance or the prevailing preferences of the people. Locke and Madison, by contrast, seemed to understand this power to be placed in the appropriate and properly structured legislative body, which is itself the expression of the people in their deliberative capacity making laws for themselves.

Are there then no limits on what the legislature may do? Locke and Madison would, in the first instance, rely on elections to rein in a legislative body unmindful of the people's rights. But if the purpose of the Second Amendment is to set some standard of action, one could do worse than something like Justice Breyer' s rational basis test. That is, if a legislature's job is to deliberate, it must actually do so and cannot come up with a restriction that is completely arbitrary.

But arbitrary in what sense? Justice Breyer sees this as a question whether the law is reasonably related to the goal of curbing urban violence. But the better sense is one based on the right itself. A law might be said to infringe the right to bear arms if it left no room for that right to continue to serve its seminal purpose. This is to permit people to protect themselves when the police are unavailable. Query whether by this standard the D.C. ordinance would hold up. Alas, none of the justices has seen the need to tell us.

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