Newsgroups: talk.politics.guns
From: [an 13795] at [anon.penet.fi] (Miquel Cartero)
Date: Thu, 29 Dec 1994 15:47:49 UTC
Subject: Van Alstyne   1/2  (repost, non-truncated)


This is a repost.  The first posting was truncated by the anon
service due to a line starting with '--'.  Sorry.

......................................................................
Duke Law Journal, Vol. 43:1236 / 1994


                              ESSAY
                     THE SECOND AMENDMENT AND
                    THE PERSONAL RIGHT TO ARMS

                      WILLIAM VAN ALSTYNE /+
                           INTRODUCTION

        Perhaps no provision in the Constitution causes one to
stumble quite so much on a first reading, or second, or third
reading, as the short provision in the Second Amendment of the
Bill of Rights. No doubt this stumbling occurs because, despite
the brevity of this amendment, as one reads, there is an apparent
non sequitur--or disconnection of a sort--in midsentence. The
amendment opens with a recitation about a need for "[a] well
regulated Militia." /1 But having stipulated to the need for "[a]
well regulated Militia," the amendment then declares that the
right secured by the amendment--the described right that is to be
free of "infringement"--is not (or not just) the right of a state
or of the United States, to provide a well regulated militia.
Rather, it is "the right of the people to keep and bear Arms."

   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. /2

        The postulation of a "right of the people to keep and
bear Arms" would make sense standing alone, however, even if it
necessarily left some questions still to be settled. /3 It would
make sense in just the same unforced way we understand even upon
a first reading of the neighboring clause in the Bill of Rights,
which uses the exact same phrase in describing something as "the
right of the people" that "shall not be violated" (or
"infringed"). Just as the Second Amendment declares that "the
right of the people to keep and bear Arms[] shall not be
infringed," so, too, the fourth Amendment declares:

   The right of the people to be secure in their persons, houses,
   papers, and effects, against unreasonable searches and
   seizures, shall not be violated .... /4

        Here, in the familiar setting of the Fourth Amendment, we
are not at all confused in our take on the meaning of the
amendment; it secures to each of us personally (as well as to all
of us collectively) a certain right--even if we are also
uncertain of its scope. /5 Nor are we confused in turning to
other clauses. For example, the Sixth Amendment provides:

   In all criminal prosecutions, the accused shall enjoy the
   right to a speedy and public trial .... /6

And so, too, the Seventh Amendment provides:

   In Suits at common law, where the value in controversy shall
   exceed twenty dollars, the right of trial by jury shall be
   preserved .... /7

That each of these rights--that all of these rights--are examples
of personal rights protected by the Bill of Rights seems
perfectly clear. And, were it not for the opening clause in the
Second Amendment, though there would still be much to thrash out,
it is altogether likely the Second Amendment would be taken in
the same way.

        To be sure, as we have already once noted, were the
Second Amendment taken in just this way, the scope of the right
that _is_ protected (namely, the right to keep and bear arms)
would still remain to be defined. /8 But by itself, that sort of
definitional determination would be of no unusual difficulty. For
so much is true with respect to every right secured from
government infringement, whether it be each person's freedom of
speech (that freedom is not unbounded, either) or any other right
specifically protected from infringement elsewhere in the Bill of
Rights. /9 And in addressing this type of (merely general)
problem, neither has the Supreme Court nor have other courts
found it intractable and certainly none of these other clauses
have been disparaged, much less have they been ignored. To the
contrary, with respect to each, a strong, supportive case law has
developed in the courts, albeit case law that has developed
gradually, over quite a long time.

        In startling contrast, during this same time, however,
the Second Amendment has generated almost no useful body of law.
Indeed, it is substantially accurate to say that the useful case
law of the Second Amendment, even in 1994, is mostly just missing
in action. In its place, what we have is roughly of the same
scanty and utterly underdeveloped nature /10 as was
characteristic of the equally scanty and equally underdeveloped
case law (such as it then was) of the First Amendment in 1904, as
of which date there was still to issue from the Supreme Court a
single decision establishing the First Amendment as an amendment
of any genuine importance at all. /11 In short, what was true of
the First Amendment as of 1904 remains true of the Second
Amendment even now.

        The reason for this failure of useful modern case law,
moreover, is not that there has been no occasion to develop such
law. So much is true only of the Third Amendment. /12 In
contrast, it is no more true of the Second Amendment than of the
First Amendment or the Fourth Amendment that we have lacked for
appropriate occasions to join issue on these questions. The
tendency in the twentieth century (though not earlier) of the
federal government has been ever increasingly to tax, ever more
greatly to regulate, and ever more substantially to prohibit
various kinds of personal gun ownership and use. /13 This
tendency, that is, is at least as commonplace as it was once
equally the heavy tendency to tax, to regulate, and too often
also to prohibit, various kinds of speech. The main reason there
is such a vacuum of useful Second Amendment understanding,
rather, is the arrested jurisprudence of the subject as such, a
condition due substantially to the Supreme Court's own
inertia--the same inertia that similarly afflicted the First
Amendment virtually until the third decade of this twentieth
century when Holmes and Brandeis finally were moved personally to
take the First Amendment seriously /14 (as previously it scarcely
ever was).

        With respect to the larger number of state and local
regulations (many of these go far beyond the federal
regulations), moreover, the case law of the Second Amendment is
even more arrested; and this for the reason that the Supreme
Court has simply declined to reconsider its otherwise discarded
nineteenth-century decisions--decisions holding that the
Fourteenth Amendment enacted little protection of anything, and
none (i.e., _no_ protection) drawn from the Bill of Rights. /15

        To trust to this arrested treatment of the Second
Amendment--and of the Fourteenth Amendment--in 1994, in short, is
as though one were inclined so to trust to the arrested treatment
of the First Amendment in 1904. The difficulty in such a starting
place is perfectly plain. No convincing jurisprudence is itself
really possible under such circumstances. In the case of the
First Amendment, we know quite well that such a jurisprudence
effectively became possible only rather late, in the 1920s (but,
one may add, better late than never). In the case of the Second
Amendment, in an elementary sense, that jurisprudence is even now
not possible until something more in the case law of the Second
Amendment begins finally to fall into place. That "something
more," I think, requires one to consider what one might be more
willing to think about in the following way--that _perhaps the
NRA is not wrong, after all, in its general Second Amendment
stance_--a stance we turn here briefly to review.

                                I

        The stance of those inclined to take the Second Amendment
seriously reverts to the place we ourselves thought to be
somewhat worthwhile to consult--namely, the express provisions of
the Second Amendment--and it offers a series of suggestions
fitting the respective clauses the amendment contains. Here is
how these several propositions run:

        1. The reference to a "well regulated _Militia_" is in
the first as well as the last instance a reference to the
ordinary citizenry. It is not at all a reference to regular armed
soldiers as members of some standing army. /16 And quite
obviously, neither is it a reference merely to the state or to
the local police.

        2. The very assumption of the clause, moreover, is that
ordinary citizens (rather than merely soldiers, or merely the
police) _may_ themselves possess arms, for it is from these
ordinary citizens who as citizens have a right to keep and bear
arms (as the second clause provides) that such well regulated
militia as a state may provide for, is itself to be drawn.

        3. Indeed, it is more than merely an "assumption,"
however, precisely because "the right of the people to keep and
bear Arms" is itself stipulated in the second clause. It is
_this_ right that is expressly identified as "_the_ right" that
is not to be ("shall not be") infringed. That right is made the
express guarantee of the clause. /17 There is thus no room left
for a claim that, despite this language, the amendment actually
means to reserve to Congress some power to contradict its very
terms (e.g., that "the Congress may, if it thinks it proper,
forbid the people to keep and bear arms to such extent Congress
sees fit to do"). /18

        4. Nor is there any basis so to read the Second Amendment
as though it said anything like the following: "Congress may, if
it thanks it proper, forbid the people to keep and bear arms if,
notwithstanding that these restrictions it may thus enact are
inconsistent with the right of the people to keep and bear arms,
they are not inconsistent with the right of each state to
maintain some kind of militia as it may deem necessary to its
security as a free state." /19

        Rather, the Second Amendment adheres to the guarantee of
the right of the people to keep and bear arms as the predicate
for the other provision to which it speaks, i.e., the provision
respecting a militia, as distinct from a standing army separately
subject to congressional regulation and control. Specifically, it
looks to an ultimate reliance on the common citizen who has a
right to keep and bear arms rather than only to some standing
army, or only to some other politically separated, defined, and
detached armed cadre, as an essential source of security of a
free state. /20 In relating these propositions within one
amendment, moreover, it does not disparage, much less does it
subordinate, "the right of the people to keep and bear arms." To
the contrary, it expressly _embraces_ that right and indeed it
erects the very scaffolding of a free state upon _that_
guarantee. _It derives its definition of a well-regulated militia
in just this way for a "free State"_: The militia to be
well-regulated is a militia to be drawn from just such people
(i.e., people with a right to keep and bear arms) rather than
from some other source (i.e., from people without rights to keep
and bear arms).

                                II

        There is, to be sure, in the Second Amendment, an express
reference to the security of a "_free_ State." /21 It is not a
reference to _the_ security of THE STATE." /22 There are
doubtless certain national constitutions that put a privileged
emphasis on the security of "the state," but such as they are,
they are all _unlike_ our Constitution and the provisions they
have respecting their security do not appear in a similarly
phrased Bill of Rights. Accordingly, such constitutions make no
reference to any right of the people to keep and bear arms, apart
from state service. /23 And why do they not do so? Because, in
contrast with the premises of constitutional government in this
country, they reflect the belief that recognition of any such
right "in the people" might well pose a threat to the security of
"the state." In the view of these different constitutions, it is
commonplace to find that no one within the state other than its
own authorized personnel has any right to keep and bear arms
/24 --a view emphatically rejected, rather than embraced, however,
by the Second Amendment to the Constitution of the United States.

        This rather fundamental difference among kinds of
government was noted by James Madison in _The Federalist Papers_,
even prior to the subsequent assurance expressly furnished by the
Second Amendment in new and concrete terms. Thus, in _The
Federalist_ No. 46, Madison contrasted the "advantage ... the
Americans possess" (under the proposed constitution) with the
circumstances in "several kingdoms of Europe ... [where] the
governments are afraid to trust the people with arms." /25 Here,
in contrast, as Madison noted, they were, and no provision was
entertained to empower Congress to abridge or to violate that
trust, any more than, as Alexander Hamilton noted, there was any
power proposed to enable government to abridge the freedom of the
press. /26

        To be sure, in the course of the ratification debates,
doubts were expressed respecting the adequacy of this kind of
assurance (i.e., the assurance that no power was affirmatively
proposed for Congress to provide any colorable claim of authority
to take away or to abridge these rights of freedom of the press
and of the right of the people to keep and bear arms). /27 And
the quick resolve to add the Second Amendment, so to confirm that
right more expressly, as not subject to infringement by Congress,
is not difficult to understand.

        The original constitutional provisions regarding the
militia /28 placed major new powers in Congress beyond those
previously conferred by the Articles of Confederation. These new
powers not only included a wholly new power to provide for a
regular, standing, national army even in peacetime, /29 but also
powers for "calling forth the Militia," /30 for "_organizing,
arming and disciplining_, the Militia," /31 and for "governing
such Part of them as may be employed in the Service of the United
States." /32 Indeed, all that was _expressly_ reserved from
Congress's reach was "the Appointment of the officers" of this
citizen militia, for even "the Authority of training the
Militia," though reserved in the first instance from Congress,
was itself subordinate to Congress in the important sense that
such training was to be "according to the discipline prescribed
_by Congress_." /33

        These provisions were at once highly controversial,
respecting their scope and possible implications of congressional
power. In attempting to counter anti-ratification objections to
the proposed constitution--objections that these lodgments of
powers would concentrate excessive power in Congress in
derogation of the rights of the people--Hamilton and Madison
argued essentially three points: /34 (a) the appointment of
militia officers was exclusively committed to state hands; /35
(b) the localized civilian-citizen nature of the militia would
secure its loyalty to the rights of the people; /36 and (c) the
people otherwise possessed a right to keep and bear arms--which
right Congress was given no power whatever to regulate or to
forbid. /37 And, as to the argument that the plan was defective
insofar as it left the protection of the rights of the people
insecure because no _express_ prohibition on Congress was
_separately_ provided in respect to those rights (rather, the
powerlessness of Congress to infringe them was solely a deduction
from the doctrine of enumerated powers alone), Hamilton insisted
that to specify anything further--to provide an _express_ listing
of particular prohibitions on Congress--was not only unnecessary
but itself would be deeply problematic, because the implication
of such a list would be that anything not named in the list might
somehow be thought therefore in fact to be subject to regulation
or prohibition by Congress though no enumerated power to affect
any such subject was provided by the Constitution itself. /38 In
brief, Hamilton maintained that to do anything in the nature of
adding a Bill of Rights would cast doubt upon the doctrine of
enumerated powers itself.

        These several explanations were deemed insufficient,
however, and to meet the objections of those in the state
ratifying conventions unwilling to leave the protection of
certain rights to mere inference from the doctrine of enumerated
powers, objections raised in the course of several state
ratification debates, the Bill of Rights was promptly produced by
Madison, in the first Congress to assemble under the new
Constitution, in 1789. Accordingly, as with "the freedom of the
press," the protection of "the right of the people to keep and
bear arms" was thus made _doubly_ secure in the Bill of Rights.
/39 Thomas Cooley quite accurately recapitulated the controlling
circumstances in the leading nineteenth century treatise on
constitutional law:

        The [Second] [A]mendment, like most other provisions in
   the Constitution, has a history. It was adopted with some
   modification and enlargement from the English Bill of Rights
   of 1688, where it stood as a protest against arbitrary action
   of the overturned dynasty in disarming the people, and as a
   pledge of the new rulers that this tyrannical action should
   cease....

        _The Right is General_.... The meaning of the provision
   undoubtedly is, that the people, from whom the militia must be
   taken, shall have the right to keep and bear arms: and they
   need no permission or regulation of law for the purpose. /40

Cooley's reference to English history, moreover, in illuminating
the Second Amendment right (as personal to the citizen as such),
is useful as well. For in this, he merely followed William
Blackstone, from Blackstone's general treatise from 1765.

        In chapter 1, appropriately captioned "Of The Rights of
Persons," Blackstone divided what he called natural personal
rights into two kinds: "primary" and "auxiliary." /41 The
distinction was between those natural rights primary to each
person intrinsically and those inseparable from their protection
(thus themselves indispensable, "auxiliary" personal rights). Of
the first kind, generically, are "the free enjoyment of personal
security, of personal liberty, and of private property." /42 Of
the latter are rights possessed "to vindicate" one's primary
rights: and among these latter, Blackstone listed such things as
access to "courts of law," and, so, too, "the right of
petition[]," and "_the right of having and using arms for
self-preservation and defence_." /43

        In contrast with all of this, the quite different
view--the view of "the secure state" we were earlier
considering-- of countries _different_ from the United
States--assumes no right of the people to keep and bear arms.
Rather, these differently constituted states put their own first
stress on having a well regulated army (and also, of course, an
internal state police). To be sure, such states also may provide
for some kind of militia, but insofar as they may (and several
do), /44 one can be quite certain that it will _not_ be a militia
drawn from the people with a "right to keep and bear Arms." For
in these kinds of states, there is assuredly no such right. To
the contrary, such a state is altogether likely to forbid the
people to keep and bear arms unless and until they are
conscripted into the militia, after which--to whatever extent
they are deemed suitably "trustworthy" by the state--they might
then (and only then) have arms fit for some assigned task.

        But, again, the point to be made here is that the Second
Amendment represented not an adoption, but a rejection, of this
vision--a vision of the security state. It did not concede to any
such state. Rather, it speaks to sources of security within a
free state, within which (to quote the amendment itself still
again) "the right of the people to keep and bear Arms[] shall not
be infringed." The precautionary text of the amendment refutes
the notion that the "well regulated Militia" the amendment
contemplates is somehow a militia drawn from a people "who have
no right to keep and bear arms." Rather, the opposite is what the
amendment enacts. /45

                               III

        The Second Amendment of course does not assume that the
right of the people to keep and bear arms will not be abused. Nor
is the amendment insensible to the _many_ forms which such abuses
may take (e.g., as in robbing banks, in settling personal
disputes, or in threatening varieties of force to secure one's
will). But the Second Amendment's answer to the avoidance of
abuse is to support such laws as are directed to those who
threaten or demonstrate such abuse and to no one else.
Accordingly, those who do neither--who neither commit crimes nor
threaten such crimes--are entitled to be left alone.

        To put the matter most simply, the governing principle
here, in the Second Amendment, is not different from the same
principle governing the First Amendment's provisions on freedom
of speech and the freedom of the press. A person may be held to
account for an abuse of that freedom (for example, by being held
liable for using it to publish false claims with respect to the
nutritional value of the food offered for public sale and
consumption). Yet, no one today contends that just because the
publication of such false statements is a danger one might in
some measure reduce if, say, _licenses_ also could be required as
a condition of owning a newspaper or even a mimeograph machine,
that therefore licensing can be made a requirement of owning
either a newspaper or a mimeograph machine. /46

        The Second Amendment, like the First Amendment, is thus
not mysterious. Nor is it equivocal. Least of all is it opaque.
Rather, one may say, today it is simply unwelcome in any
community that wants no one (save perhaps the police?) to keep or
bear arms at all. But assuming it to be so, i.e., assuming this
is how some now want matters to be, it is for them to seek a
repeal of this amendment (and so the repeal of its guarantee), in
order to have their way. Or so the Constitution itself assuredly
appears to require, if that is the way things are to be.

                                IV

        In the first instance, enacted as it was as part of the
original Bill of Rights of 1791, the Second Amendment merely was
addressed to Congress and not to the states. The mistrust and
uncertainty of how _Congress_ might presume to construe its new
powers--powers newly enumerated in Article I of the
Constitution--resulted in the Bill of Rights inclusive of the
Second Amendment, proposed in the very first session of the new
Congress in 1789. As it was then apprehended that although
Congress was never given any power to preempt state
constitutional provisions respecting freedom of speech or of the
press, Congress might nonetheless presume to regulate those
subjects to its own liking under pretext of some other authority
if not barred from doing so by amendment, the Second
Amendment--and the other amendments composing the original Bill
of Rights--reflected the same mistrust and were adopted for the
same reason as well. But, to be sure, neither the First nor the
Second Amendment, /47 nor any of the other amendments in the Bill
of Rights were addressed as limits on the states. /48

        In 1866, however, this original constitutional toleration
of state differences with respect to their internal treatment of
these rights came to an end, in the aftermath of the Civil War.
The immunities of citizens with respect to rights previously
secured only from abridging acts of Congress were recast in the
Fourteenth Amendment as immunities secured also from any similar
act by any state. /49 It was precisely in this manner that the
citizen's right to keep and bear arms, formerly protected only
from acts of Congress, came to be equally protected from
abridging acts of the states as well.

        So, in reporting the Fourteenth Amendment to the Senate
on behalf of the Joint Committee on Reconstruction in 1866,
Senator Jacob Meritt Howard of Michigan began by detailing the
"first section" of that amendment, i.e., the section that
"relates to the privileges and immunities of citizens." /50 He
explained that the first clause of the amendment (the "first
section"), once approved and ratified, would "restrain the power
of the States" /51 even as Congress was already restrained (by
the Bill of Rights) from abridging

   the personal rights guarantied and secured by the first eight
   amendments of the Constitution; such as the freedom of speech
   and of the press; the right of the people peaceably to
   assemble and petition the Government for a redress of
   grievances, a right appertaining to each and all the people;
   _the right to keep and to bear arms_; the right to be exempted
   from the quartering of soldiers in a house without the consent
   of the owner; the right to be exempt from unreasonable
   searches and seizures[; etc., through the Eighth Amendment].
   /52

In the end, Senator Howard concluded his remarks as follows: "The
great object of the first section of this amendment is,
therefore, to restrain the power of the States and compel them at
all times to respect these great fundamental guarantees." /53
There was no dissent from this description of the clause.

        Following ratification of the Fourteenth Amendment,
therefore, some state constitutions might presume to provide even
_more_ protection of these same rights than the Fourteenth
Amendment (and some continue even now to do so /54), but none
could thereafter presume to provide any less--whether the object
of regulation was freedom of speech and of the press or of the
personal right to arms. And it is quite clear that in the
ratification debates of the Fourteenth Amendment, no distinction
whatever was drawn between the "privileges and immunities"
Congress was understood already to be bound to respect (pursuant
to the Bill of Rights) and those now uniformly also to bind the
states. Each was given the same constitutional immunity from
abridging acts of state government as each was already recognized
to possess from abridgment by Congress. What was previously
forbidden only to Congress to do was, by the passage of the
Fourteenth Amendment, made equally forbidden to any state.
Moreover, the point was acknowledged to be particularly important
in settling the Second Amendment right as a citizen's personal
right, i.e., personal to each citizen as such. /55

                                V

        Again, however, one does not derive from these
observations that each citizen has an uncircumscribable personal
constitutional right to acquire, to own, and to employ any and
all such arms as one might desire so to do, or necessarily to
carry them into any place one might wish. To the contrary,
restrictions generally consistent merely with safe usage, for
example, or restrictions even of a particular "Arms" kind, are
not all per se precluded by the two constitutional amendments and
provisions we have briefly reviewed. There is a "rule of reason"
applicable to the First Amendment, for example, and its
equivalent will also be pertinent here. It is not the case that
one may say whatever one wants and however one wants, wherever
one wants, and whenever one likes-- location, time, and
associated circumstances do make a difference, consistent even
with a very strong view of the freedom of speech and press
accurately reflected in conscientious decisions of the Supreme
Court. The freedoms of speech and of the press, it has been
correctly said, are not absolute.

        Neither is one's right to keep and bear arms absolute. It
may fairly be questionable, for example, whether the type of arms
one may have a "right to keep" consistent with the Second
Amendment extend to a howitzer. /56 It may likewise be
questionable whether the "arms" one _does_ have a "right to keep"
are necessarily arms one also may presume to "bear" wherever one
wants, e.g., in courtrooms or in public schools. To be sure, each
kind of example one might give will raise its own kind of
question. And serious people are quite willing to confront
serious problems in regulating "the right to keep and bear arms,"
as they are equally willing to confront serious problems in
regulating "the freedom of speech and of the press." /57

        The difference between these serious people and others,
however, was a large difference in the very beginning of this
country and it remains as a large difference in the end. The
difference is that such serious people begin with a
constitutional understanding that declines to trivialize the
Second Amendment or the Fourteenth Amendment, just as they
likewise decline to trivialize any other right expressly
identified elsewhere in the Bill of Rights. It is difficult to
see why they are less than entirely right in this unremarkable
view. That it has taken the NRA to speak for them, with respect
to the Second Amendment, moreover, is merely interesting--perhaps
far more as a comment on others, however, than on the NRA.

        For the point to be made with respect to Congress and the
Second Amendment /58 is that the essential claim (certainly not
every claim--but the essential claim) advanced by the NRA with
respect to the Second Amendment is extremely strong. Indeed, one
may fairly declare, it is at least as well anchored in the
Constitution in its own way as were the essential claims with
respect to the First Amendment's protection of freedom of speech
as first advanced on the Supreme Court by Holmes and Brandeis,
seventy years ago. /59 And until the Supreme Court manages to
express the central premise of the Second Amendment more fully
and far more appropriately than it has done thus far, the
constructive role of the NRA today, like the role of the ACLU in
the 1920s with respect to the First Amendment (as it then was),
ought itself not lightly to be dismissed. /60 Indeed, it is
largely by the "unreasonable" persistence of just such
organizations in this country that the Bill of Rights has
endured.

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