Debating the Second Amendment--at Willamette University College of Law

About six weeks ago the Heller case, relating to individual rights to own handguns in the District of Columbia (where they currently are banned), was argued at the US Supreme Court. It is a landmark case of sorts, since the respondents in the case argue the legal theory that the language of the 2nd Amendment confers an "individual right" to own "arms." The only Supreme Court precedent interpreting this Amendment (from 1939) held that there was no such "individual right." Thus, the opponents of the "individual rights" reading of the Amendment can be referred to as "collective rights" readers.

I sumarized the case here, and concluded that the Justices probably would find an individual right to own firearms in the US Constitution, though they would allow jurisdictions to regulate their use. Yet, after listening to a debate last week at my alma mater, Willamette University College of Law, on the issue, I am not so sure. It was not as if the arguments made by the proponents of gun rights were weak or those of the "collective rights" interpretation of the 2nd Amendment were strong. Rather, I used the occasion of the debate to "tune out" the debaters and look calmly at the text of the Amendment--which neither of the attorneys did. This essay reflects my reading of the text.

The Text and the Questions It Presents

Here is the langauge of the infrequently-interpreted 2nd Amendment:

"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."

There is no definitive (from the Supreme Court) interpretation of what this sentence means and whose rights it protects. In order to get to that issue, we have to ask a number of questions. Let's actually begin with the declaration clause--the second clause, because that is the "rights-conferring" clause. The following questions need to be resolved: (1) Who are "the people" here? Are the people here conceived as individuals or are they only considered important when they are a collective? The US Constitution begins with the words, "We the people." Does that help? (2) What does "arms" mean? The OED, for example, defines arms as any offensive weapon. Should such an expansive definition be given here and, if not, why not? (3) What is the context of the "keeping and bearing arms"? Is it in any context at all? Homes? Military service?

This third questions then leads us to the first clause of the seemingly inartfully-drafted Amendment. A few questions need to be asked of the text here, too. (4) What is a "Militia?" Is it a force of a state or the federal goverment? Or, is it a private band of citizens that stand up against state and federal powers if they think the latter have overstepped their bounds? Then, (5) what does it mean that such a Militia is "well-regulated"? By whom? To what end?

The respondent in this case, which argued for the "individual" reading of the Amendment, was represented by Mr. Alan Gura, who actually presented his argument at Willamette last week. Crucial to his case, as demonstrated in his brief, was the assumption that the first phrase of the Amendment is a "preamble." Preambles, in a word, can be ignored. They don't control the meaning of what follows. He gave examples of a few other "preambles" in the Amendments and text of the Constitution to try to make his case.

I don't think that is a good textual way to proceed. That is, it says that before we even examine the text, we eliminate one of the clauses from consideration. Why would we do such a thing unless we have already concluded what the text means? So, I didn't find Mr. Gura's approach to be very compelling or well-reasoned. In order to take the text of the Constitution seriously, we should be forced to look at all the words, and not simply lop off the ones under the name "preamble" that we don't like.

Looking at the Text--Answering Questions

I have no problem in beginning my textual analysis with the second clause, looking at the "right" that is being conferred. It seems unimportant to decide if the "people" are individuals or a collective, since the understanding of arming oneself 230 years ago was that people would bring their arms, i.e., the guns they owned, to the defense of the state. Maybe the state would also supply some offensive arms, but the natural reading/assumption of the second clause is that individuals had guns. But that doesn't solve many problems in final interpretation of the text, because now we have to relate this possession of guns to the first clause.

We can't just say that the first clause is a "preamble" and then dismiss it. It is text. It is a dependent clause, to be sure, but a clause that carries meaning. The central features of that first clause are the words/phrases "Militia" and "well-regulated." We need to see the "right" conferred in the second half of the sentence as dependent on the phrases in the first half of the sentence. Let me illustrate what I mean. If the first phrase had said, "The freedom of religion in all ways being essential to a free people," and then the clause had followed, "the right of the people to keep and bear arms shall not be infringed," you would naturally try to understand the freedom to keep/bear arms in the context of freedom of religion. Maybe there would be a religious duty to keep arms, etc.

So, you have to relate the two clauses to each other. When you come to this realization, you see that the right, whether it is individual or collective, is to be exercised in the context of the "well-regulated Militia." Let's just pause on "well-regulated." There is an orderliness connoted in that phrase, a sense that someone is in charge, and that there is a body organized for some task. Then, when the word "Militia" follows, we have the purpose of that orderliness--to serve the "Militia," whatever that is. If we understand "Militia" to refer to a state-based military organization, then the clause has become moot--because states don't have militias independent of the federal government anymore. If we understand "Militia" to refer by extension to what we now know as "the Army" or the "Armed Forces," then the right to keep and bear arms only has meaning in that context.

Conclusion

Thus, I conclude, rather differently than I suggested in an essay a few months ago, that this right can only be exercised in the context of something that is "well-regulated" and can be consistent with the word "Militia." To find a right in these words to arm oneself in a DC condo seems to be quite a stretch, indeed a stretch beyond the bounds of credulity. If one wants to find a right to private handgun ownership in the US Constitution, one might look to other clauses, but one shouldn't look to the 2nd Amendment. The text of this Amendment just won't support it.

3495