Newsgroups: talk.politics.guns
From: [an 13795] at [anon.penet.fi] (Miquel Cartero)
Date: Thu, 29 Dec 1994 06:01:45 UTC
Subject: Van Alstyne   2/2


continued>>>>>

Footnotes: --------------------------------------------

+ William R. and Thomas L. Perkins Professor of Law, Duke
University School of Law.

1. The subject is that of "A well regulated Militia" -- a militia
the amendment declares to be "necessary to the security of a free
State." U.S. CONST. amend. II. But it is hard to say on first
reading whether the reference is to a well-regulated _national_
militia or, Instead, to a well-regulated _state_ militia (i.e., a
militia in each state). Perhaps, however, the reference is to
both at once--a militia in each state, originally constituted
under each state's authority, but subject to congressional
authority to arm, to organize, and to make provision to call into
national service, as a national militia. The possibility that
this may be so tends to send one looking for other provisions in
the Constitution that may help to clear this matter away. And a
short search readily turns up several such provisions: Article I,
section 8, clauses 15 and 16, and Article II, section 2, clause
1. See infra note 16.

2. U.S. CONST. amend. II.

3. For example, one might well still be uncertain of the breadth
of the right to keep and bear arms (e.g., just what _kinds_ of
"Arms"?).

4. U.S. CONST. ammend. IV.

5. For example, does the protection of "houses" and "effects"
from unreasonable searches and seizures extend to trash one may
have put outside in a garbage can? May it matter whether one has
put the can itself outside one's garage or farther out, beside
the street? See California v. Greenwood, 486 U.S. 35, 37 (1988).

6. U.S. CONST. amend. VI.

7. Id. amend. VII.

8. For example, with respect to the kind of "Arms" one may have.
Perhaps these include all arms as may be useful (though not
exclusively so) as an incident of service in a militia--and
indeed, this would make sense of the introductory portion of the
amendment as well. See United States v. Miller, 307 U.S. 174, 178
(1939).

9. So, for example, though the Sixth Amendment provides a right
to a "speedy" and "public" trial whenever one is accused of a
(federal) crime, the amendment does not declare just _how_
"speedy" the trial must be (i.e., exactly how soon following
indictment the trial must be held) nor _how_ "public" either
(e.g., must it be televised to the world, or is an open
courtroom, albeit with very limited seating, quite enough?). And
the Fourth Amendment does not say there can be _no_ searches and
seizures--rather, only no "unreasonable" searches and seizures.
Yet there is a very substantial body of highly developed case law
that has given this genuine meaning and effect.

        Likewise, when the Sixth and Seventh Amendments speak of
the right to trial by "jury," then (even as is true of the Second
Amendment in its reference to "Arms"?), though each of these
amendments is silent as to what a jury means (a "jury" of how
many people? a "jury" selected in what manner and by whom?), the
provision means to be--and tends to be--given some real, some
substantial, and some constitutionally significant effect. The
point is, of course, that though there are questions of this sort
with respect to _every_ right furnished by the Bill of Rights,
the expectation remains high that the right thus furnished will
neither be ignored--treated as though it were not a right at
all--nor so cynically misdefined or "qualified" in its ultimate
description as to be reduced to an empty shell. It is only in the
case of the Second Amendment that this is approximately the
current state of the law. Indeed, it is only with respect to the
Second Amendment that the current state of the law is roughly the
same as was the state of the law with respect to the First
Amendment's guarantees of freedom of speech and of the press as
recently as 1904. As a restraint on the federal government, the
First Amendment was deemed to be a restriction merely on certain
kinds of prior restraint and hardly at all on what could be
forbidden under threat of criminal sanction. See, e.g., Patterson
v. Colorado, 205 U.S. 454, 462 (1907). As to the states, the
amendment was not known as necessarily furnishing any restraint
at all. See id.

10. The most one can divine from the Supreme Court's scanty
decisions ("scanty" is used advisedly--essentially there are only
two) is that such right to keep and bear arms as may be secured
by this amendment may extend to such "Arms" as would be
serviceable within a militia but not otherwise (so a "sawed-off"
shotgun may not qualify, though presumably--by _this_ test--heavy
duty automatic rifles assuredly would). See United States v.
Miller, 307 U.S. 174, 178 (1939); see also Lewis v. United
States, 445 U.S. 55, 65 n.8 (1980) (noting that legislative
restrictions on the right of felons to possess firearms do not
violate any constitutionally protected liberty); Robertson v.
Baldwin, 165 U.S. 275, 282 (1897) (referring to the "right of the
people to keep and bear Arms" as a personal right). These casual
cases aside ("casual," because in Miller, for example, there was
not even an appearance entered by the defendant-appellant in the
Supreme Court), there are a few 19th-century decisions denying
any relevance of the Second Amendment to the states: but these
decisions, which have never been revisited by the Supreme Court,
merely mimicked others of the same era in holding that _none_ of
the rights or freedoms enumerated in the Bill of Rights were made
applicable by the Fourteenth Amendment to the states. See, e.g.,
Presser v. Illinois, 116 U.S. 252, 265 (1886) (citing United
States v. Cruikshank, 92 U.S. 542, 553 (1875)). The shaky
foundation of these cases ("shaky" because the effect was to
eviscerate the Fourteenth Amendment itself) has long since been
recognized--and long since repudiated by the Court in general.
Notwithstanding, the lower courts continue ritually to rely upon
them, and the Supreme Court quite as regularly declines to find
any suitable for review. See, e.g., Quilici v. Village of Morton
Grove, 695 F.2d 261, 269-70 (7th Cir. 1982) (holding that
municipal handgun restrictions were constitutional), cert.
denied, 464 U.S. 863 (1983). And why does one suppose that this
is so?

11. See supra note 9.

12. Troops have not generally been quartered in private homes "in
time of peace ... without the consent of the Owner," nor even "in
time of war," U.S. CONST. amend. III, for a very long time, and
no Third Amendment case has ever been decided by the Supreme
Court. Evidently, a Third Amendment case has arisen only once in
a lower federal court. See Engblom v. Carey, 677 F.2d 957 (2d
Cir. 1982) (holding that the Third Amendment protects the
legitimate privacy interests of striking correction officers in
keeping their housing from being used for quartering National
Guard troops).

13. For a comprehensive review of congressional action since
1934, see United States v. Lopez, 2 F.3d 1342, 1348-60 (5th Cir.
1993).

14. See, e.g., Whitney v. California, 274 U.S. 357, 372 (1927)
(Brandeis and Holmes, JJ., concurring); Gitlow v. New York, 268
U.S. 652, 672 (1925) (Holmes and Brandeis, JJ., dissenting);
United States ex rel. Milwaukee Social Democratic Publishing Co.
v. Burleson, 255 U.S. 407, 417 (1921) (Holmes and Brandeis, JJ.,
dissenting); Abrams v. United States, 250 U.S. 616, 624 (1919)
(Holmes and Brandeis, JJ., dissenting). See generally SAMUEL J.
KONEFSKY, THE LEGACY OF HOLMES AND BRANDEIS 181-256 (1956)
(reviewing the Holmes-Brandeis legacy of the First Amendment).

15. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873);
GERALD GUNTHER, CONSTITUTIONAL LAW 408-10 (12th ed 1991). The
Slaughter-House Cases denied that the Privileges and Immunities
Clause of the Fourteenth Amendment extended any protection from
the Bill of Rights against the states. Within three decades,
however, the Court began the piecemeal abandonment of that
position (albeit by relying on the Due Process Clause instead).
See Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897)
(applying the Fifth Amendment prohibition against the taking of
private property for public use without just compensation and
holding it to be equally a restraint against the states). In
1925, the Court proceeded in like fashion with respect to the
Free Speech Clause of the First Amendment, see Gitlow, 268 U.S.
at 666, and subsequently with respect to most of the rights
enumerated in the Bill of Rights (exclusive, however, of the
right to keep and bear arms). As already noted, the Court has
declined to reexamine its 19th century cases (Presser and
Cruikshank) that merely relied on the Slaughter-House Cases for
their rationale. Cf. discussion infra Part IV.

16. Article I vests power in Congress "[t]o raise and support
Armies," i.e., to provide for a national standing army as such,
see U.S. CONST. art. I, S 8, cl. 12. It is pursuant to two
different clauses that Congress is given certain powers with
respect to the militia, such as the power "for _calling forth the
Militia_ to execute the Laws of the Union, suppress Insurrections
and repel Invasions," id. cl. 15 (emphasis added), and the power
"[t]o provide for organizing, arming, and disciplining, _the
Militia_, and for governing such Part of them as may be employed
in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority
of _training the Militia_ according to the discipline prescribed
by Congress," id. cl. 16 (emphasis added). So, too, the
description of the executive power carries over the distinction
between the regular armed forces of the United States in a
similar fashion. Accordingly, Article II, section 2 provides that
"[t]he President shall be Commander in Chief of the Army and Navy
of the United States, _and of the Militia_ of the several States,
when called into the actual Service of the United States." Id.
art. II, S 2, cl. 1 (emphasis added).

17. And it is from the people, whose right this is, that such
militia as the state may (as a free state) compose and regulate,
shall be drawn--just as the amendment expressly declares.

18. Compare the utter incongruity of this suggestion with the
actual provisions the Second Amendment enacts.

19. Compare this incompatible language and thought with the
actual provisions of the amendment. Were the Second Amendment a
mere federalism ("States' rights") provision, as it is not, it
would assuredly appear in a place appropriate to that purpose
(i.e., not in the same list with the First through the Eighth
Amendments, but nearby the Tenth Amendment), and it would
doubtless reflect the same federalism style as the Tenth
Amendment; for example, it might read: "Congress shall make no
law impairing the right of each state to maintain such well
regulated militia as it may deem necessary to its security as a
free state." But it neither reads in any such fashion nor is it
situated even to imply such a thought. Instead, it is cast in
terms that track the provisions in the neighboring personal
rights clauses of the Bill of Rights. Just as the Fourth
Amendment provides that "[t]he right of the people to be secure
in their persons, houses, papers, and effects ... shall not be
violated," U.S. CONST. amend. IV (emphasis added), so, too, the
Second Amendment matches that language and likewise provides that
"the right of the people to keep and bear Arms, shall not be
infringed," id. amend. II (emphasis added); see also United
States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) ("The Second
Amendment protects 'the right of the people to keep and bear
Arms' ..."). In further response to the suggestion that the
Second Amendment is a mere States' rights clause in analogy with
the Tenth Amendment (by, e.g., Keith A. Ehrman & Dennis A.
Henigan, _The Second Amendment in the Twentieth Century: Have You
Seen Your Militia Lately?_, 15 U. DAYTON L. REV. 5, 57 (1989)),
see STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION
OF A CONSTITUTIONAL RIGHT (1984). As Halbrook notes,

   In recent years it has been suggested that the Second
   Amendment protects the "collective" right of states to
   maintain militias, while it does not protect the right of "the
   people" to keep and bear arms. If anyone entertained this
   notion in the period during which the Constitution and Bill of
   Rights were debated and ratified, it remains one of the most
   closely guarded secrets of the eighteenth century, for _no
   known writing surviving from the period between 1787 and 1791
   state such a thesis_.

Id. at 83 (emphasis added).

20. See supra note 16 and accompanying text.

21. U.S. CONST. amend. II (emphasis added). In James Madison's
original draft of the amendment, moreover, the reference is to "a
free country" (and not merely to "a free State"). See BERNARD
SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1026 (1971).

22. Once again, see the amendment, and compare the difference in
thought conveyed in these different wordings as they might
appear, in contrast, in actual print.

23. See, e.g., XIANFA (1982) [Constitution] art. 55, cl. 2
(P.R.C.), translated in THE CONSTITUTION OF THE PEOPLE'S REPUBLIC
OF CHINA 41 (1983); infra note 44.

24. A position evidently preferred by many today in this country
as well, with the apparent approval even of the ACLU. See
AMERICAN CIVIL LIBERTIES UNION, POLICY GUIDE OF THE AMERICAN
CIVIL LIBERTIES UNION 95 (1986) ("Except for lawful police and
military purposes, the possession of weapons by individuals is
not constitutionally protected."). It is quite beyond the scope
of this brief Essay to attempt to account for the ACLU'S
stance--which may even now be undergoing some disagreement and
internal review.

25. THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton
Rossiter ed., 1961).

26. Id. NO. 84 at 513-14 (Alexander Hamilton).

27. See, e.g., Leonard W. Levy, _Bill of Rights (United States),
in 1 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 113, 114-15
(Leonard W. Levy et al. eds., 1986).

28. See supra note 16.

29. U.S. CONST. art. I, S 8, cls. 12-13.

30. Id. cl. 15.

31. Id. cl. 16 (emphasis added).

32. Id.

33. Id. (emphasis added).

34. See THE FEDERALIST NOS. 28, 29, 84 (Alexander Hamilton); id.
No. 46 (James Madison) (Clinton Rossiter ed., 1961).

35. Id. NO. 29 at 182, 186 (Alexander Hamilton) (emphasizing this
point).

36. See id. at 185-87.

37. See id. NO. 46 at 299-300 (James Madison).

38. Id. NO. 84 at 512-14 (Alexander Hamilton).

39. See JOYCE L MALCOLM, TO KEEP AND BEAR ARMS 164 (1994).
William Rawle, George Washington's candidate for the nation's
first attorney general, made the same point. See WILLIAM RAWLE, A
VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125-26
(2d ed. 1829).

40. THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL
LAW IN THE UNITED STATES OF AMERICA 270-71 (1880). To be sure,
Cooley went on to note that the Second Amendment had, as a
"further" purpose (not the chief purpose--which, as he says, was
to confirm the citizen's personal right to keep and bear
arms--but as a "further purpose"), the purpose to preclude any
excuse of alleged need for a large standing army. Id.: see also
PA. CONST. of 1776, art. VIII ("That the people have a right to
bear arms for the defense of themselves, and the state; and as
standing armies in the time of peace, are dangerous to liberty,
they ought not to be kept up: and that the military should be
kept under strict subordination to, and governed by the civil
power.").

41. 1 WILLIAM BLACKSTONE, COMMENTARIES *129, *141.

42. Id. at *144.

43. Id. (emphasis added). Against this background, incidentally,
the Supreme Court's decision in DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189 (1989), may be important to
take into account in understanding the underpinnings of the
personal right to keep and bear arms in the Blackstone minimal
sense of the right to keep arms for self-preservation itself. To
the extent that there is no enforceable constitutional obligation
imposed on government in fact to protect every person from force
or violence--and also no liability for a per se failure to come
to any threatened person's aid or assistance (as _DeShaney_
declares altogether emphatically)--the idea that the same
government could nonetheless threaten one with criminal penalties
merely "for having and using arms for self-preservation and
defense" becomes impossibly difficult to sustain consistent with
any plausible residual view of auxiliary natural rights. See also
Nicholas Johnson, _Beyond the Second Amendment: An Individual
Right to Arms Viewed Through The Ninth Amendment_, 24 RUTGERS
L.J. 1, 64-67 (1992) (collecting prior articles and references to
the strong natural rights history of the personal right to
possess essential means of self defense).

          An impressive number of authors, whose work Nicholas
Johnson reports (and to which he adds in this article), have
sought to locate the right to keep and bear arms in the Ninth
Amendment. They note that the Ninth Amendment provides
precautionarily that "[t]he enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage
others retained by the people." U.S. CONST. amend. IX. And they
go forward to show that the right to bear arms was a right of
just this sort. i.e., that "the right to keep and bear Arms" was
itself so utterly taken for granted, and so thoroughly accepted,
that it fits the Ninth Amendment's description very aptly. See
Johnson, supra, at 34-37. Unsurprisingly, however, the sources
relied upon to show that this was so, strong as they are (and
they are quite strong), are essentially just the very same
sources that inform the Second Amendment with respect to the
predicate clause on the right of the people to keep and bear
arms. That is, they are the same materials that also show that
there was a widespread understanding of a common right to keep
and bear arms, which is itself the express right the Second
Amendment expressly protects. Recourse to the same materials to
fashion a Ninth Amendment ("unenumerated") right is not only
largely replicative of the Second Amendment inquiry, but also
singularly inappropriate under the circumstances--the right to
bear arms is not left to the vagaries of Ninth Amendment disputes
at all.

44. E.g., XIANFA [Constitution] art. 55, cl. 2 (P.R.C.),
translated in THE CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA
41 (1983) ('it is the honourable duty of citizens of the People's
Republic of China to perform military service and join the
militia in accordance with the law.").

45. See MALCOLM, supra note 39, at 135-64 (tracing the English
antecedents and reviewing the full original history of the Second
Amendment). Professor Malcolm concludes, exactly as Thomas Cooley
did a century earlier, see supra note 40, that

           [t]he Second Amendment was meant to accomplish two
   distinct goals, each perceived as crucial to the maintenance
   of liberty. First, it was meant to guarantee the individual's
   right to have arms for self-defence and self-preservation.
   Such an individual right was a legacy of the English Bill of
   Rights [broadened in scope in America from the English
   antecedent]....

            The clause concerning the militia was not intended to
   limit ownership of arms to militia members, or return control
   of the militia to the states, but rather to express the
   preference for a militia over a standing army.

MALCOM, supra, at 162-63. For other strongly confirming reviews,
see, e.g., SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE
JUDICIARY, THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2d Sess.
(1982); HALBROOK, supra note 19, at 67-80; David I. Caplan,
_Restoring the Balance: The Second Amendment Revisited_, 5
FORDHAM URB. L.J. 31, 33-43 (1976); Stephen P. Halbrook, _The
Right of the People or the Power of the State: Bearing Arms,
Arming Militias, and the Second Amendment_, 26 VAL. U. L. REV.
131 (1991); David T. Hardy, _Armed Citizens, Citizen Armies:
Toward a Jurisprudence of the Second Amendment_, 9 HARV. J.L. &
PUB. POL'Y 559, 604-15 (1986); David T. Hardy, _The Second
Amendment and the Historiography of the Bill of Rights_, 4 J.L. &
POL. 1, 43-62 (1987); Don B. Kates, Jr., _Handgun Prohibition and
the Original Meaning of the Second Amendment_, 82 MICH. L. REV.
204, 206, 211-45 (1983); Sanford Levinson, _The Embarrassing
Second Amendment_, 99 YALE L.J. 637, 645-51 (1989); Robert E.
Shalhope, _The Armed Citizen in the Early Republic_, 49 LAW &
CONTEMP. PROBS., Winter 1986, at 125, 133-41. But see Ehrman &
Henigan, supra note 19; Dennis A. Henigan, _Arms, Anarchy and the
Second Amendment_, 26 VAL. U.L. REV. 107, 111 n.17 (1991)
(listing additional articles by others).

46. Compare the claim of a power in government to require
"licensing" the right to keep arms.

47. The Second Amendment was originally the fourth amendment of
twelve approved by the requisite two-thirds of both houses of
Congress in 1789 and at once submitted for ratification by the
state legislatures. Because only six states approved either the
first or second of these twelve amendments during the ensuing two
years (1789-1791), however, neither of these was adopted (since,
unlike the others, they failed to be confirmed by three-fourths
of the states). So, what was originally proposed as the third
amendment became the First Amendment and what was originally
proposed as the fourth amendment became the Second Amendment in
turn. (On May 22, 1992, however, the original proposed second
amendment of 1789 was declared by Congress to have acquired
sufficient state resolutions of ratification as of May 7, 1992,
as also itself to have become effective as well. The result is
that what was originally submitted as the second amendment has
become the Twenty-Seventh Amendment instead.) See William Van
Alstyne, _What Do You Think About the Twenty-Seventh Amendment?_,
10 CONST. COMMENTARY 9 (1993).

48. See Barren v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 249
(1833) ("These amendments demanded security against the
apprehended encroachments of the general government--not against
those of the local governments.").

49. See U. S. CONST. amend. XIV.

50. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of
Sen. Jacob Meritt Howard). Senator Howard is speaking here--and
in his ensuing remarks--in explanation of the "first section" of
the Fourteenth Amendment that provides: "No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States ...."

51. Id. at 2766.

52. Id. at 2765 (emphasis added).

53. Id. at 2766 (emphasis added). For the most recent review of
this matter, with useful references to the previous scholarship
on the same subject, and reaching the same conclusion still
again, see Richard L Aynes, _On Misreading John Bingham and the
Fourteenth Amendment_, 103 YALE L.J. 57 (1993).

54. See Robert Dowlut, _Federal and State Constitutional
Guarantees to Arms_, 15 U. DAYTON L. REV. 59, 79 (1989) ("State
courts have on at least 20 reported occasions found arms laws to
be unconstitutional."); Robert Dowlut & Janet A. Knoop, _State
Constitutions and the Right to Keep and Bear Arms_, 7 OKLA. CITY
U.L. REV. 177 (1982) (reviewing state constitutional clauses and
the right to keep and bear arms).

55. The inclusion of this entitlement for personal protection is,
in the Fourteenth Amendment, even more clear than as provided (as
a premise) in the Second Amendment itself. It was, after all, the
defenselessness of Negroes (denied legal rights to keep and bear
arms by state law) from attack by night riders--even to protect
their own lives, their own families, and their own homes--that
made it imperative that they, as citizens, could no longer be
kept defenseless by a regime of state law denying them the common
right to keep and bear arms. Note the description of the right as
a personal right in the report by Senator Howard. See supra text
accompanying note 52. For confirming references, see also the
examples provided in MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE
24, 43, 56, 72, 138-41, 164, 203 (1986); HALBROOK, supra note 19,
at 107-23; Skayoko Blodgett-Ford, _Do Battered Women Have a Right
to Bear Arms?_, 11 YALE L. & POL'Y REV. 509, 513-24 (1993);
Robert J. Cottrol & Raymond T. Diamond, _The Second Amendment:
Toward an Afro-Americanist Reconsideration_, 80 GEO. L.J. 309
(1991); Kates, supra note 45, at 254-57. For an overall
responsible general review, see also Levinson, supra note 45. For
the most recent critical review, however, see Raoul Berger,
_Constitutional Interpretation and Activist Fantasies_, 82 KY.
L.J. 1 (1993-1994) (with additional references to previous books
and articles).

56. In contrast, the suggestion that it does not extend to
handguns (in contrast to howitzers) is quite beyond the pale
(i.e., it is wholly inconsistent with any sensible understanding
of a meaningful right to keep arms as a personal right).

57. Such questions, moreover, are hardly on that account (merely
as questions) necessarily hard or difficult to answer in
reasonable ways, even fully conceding a strong view of the right
to keep and bear arms (e.g., rules of tort or of statutory
liability for careless storage endangering minors or others
foreseeably put at unreasonable risk).

58. And equally with respect to the states, pursuant to the
Fourteenth Amendment.

59. See supra notes 9-14 and accompanying text.

60. Unless, of course, one holds the view that it is really
desirable after all that the Constitution should indeed be
construed--the Second and Fourteenth Amendments to the contrary
notwithstanding--to say that the right to keep and bear arms is
the right to keep and bear arms as it is sometimes understood
(i.e., as though it had the added words, "but only according to
the sufferance of the state").

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