The Second Amendment and the Living Constitution

Today also seemed like a good day to reprint my 2002 item on the Second Amendment and the living Constitution:

[Some ask]: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms -- we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny -- albeit self-defense that would be assured through individual gun ownership -- in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion ... the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from [2002], 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll [from 2002] found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards -- look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 -- or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls -- but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

UPDATE: For much more evidence in favor of the individual rights view, see the materials I mentioned here. (Some commenters took issue with my mentioning the Freedmen's Bureau Bill, which represented only the view of the majority of the 1866 Congress, and was vetoed by President Johnson; but I mention that just because it's one piece of especially telling evidence about how the right to bear arms was viewed in the 1860s, when the Fourteenth Amendment was proposed -- there is much more evidence of that from the 1860s debates, which Akhil Amar, Stephen Halbrook, and others have pointed to, and some of which I point in my other post. And there is even more evidence of that from the late 1700s and throughout the 1800s, in the sources I linked to before.)

Comments

[research]

James Madison sure doesn't agree with you. Nor does Ghandi. Both were very clear that individual citizens be armed to be used in the specifically mentioned resistance to the tyranny of the federal government or invasion.

I specifically bring up potential tyranny of the BushCo via Blackwater.

I would prefer that people arm themselves with less lethal weapons, but if you have ever had a group of armed thugs threaten you, you might want a gun.

[Chuckbutcher]

Until cities decided to ban guns the question of individual/collective never even existed. If there were ever a question the Machine Gun Tax never need have been enacted as a dodge around a blanket ban on citizen's rights. I'm a very left Democrat but that certainly doesn't mean I am in the practice of giving up my rights for the convenience of the government nor for momentary security.

[milo9]

Karl Rove and his fellow neo-fascist scum will have to pry my guns from my lifeless fingers.

[Pdubya]

The 2nd Ammendment is the only Ammendment that can guarantee the rest.

[rblackbird]

Mr. Volokh bases much of his argument on the language of the [Second] Freedmen Bureau Act of 1866. He omits, however, that President Andrew Johnson vetoed the act and it never became law.

The 1866 Act stands merely as an expression of opinion of northern congressmen. At that point the South did not have effective representation in the Congress. If southern whites had been asked the question, they undoubtedly would denied a federal constitutional right if it meant blacks could carry guns. They would have relied on state law to grant whites, but not blacks, the right. (The 14th Amendment had not yet been adopted.)

Volokh offers no legislative history that the 1866 Congress looked into whether the Second Amendment actually granted an individual the right to carry a gun. There had not been any expression by the federal government before, either by Supreme Court opinion or enactment of Congress, that the Second Amendment guaranteed an individual right. Throwing "the consitutional right to bear arms" into the law with a long list of other remedies is a fairly off-hand way to declare a constitutional right.

Mr Volokh does not solve the quandry of what the Second Amendment means.

[The Collinbrandt]

The Constitution of the United States insists, that when there is a corrupt government that cannot be denied power via a legitamate ballot, it is incumbant upon every American to bear the most vocal discord that can be created, to insist that they be given back the power of democracy from the federal tyrants and the illigitamate government and its procouncils, and that these villians will be deported to a land more accustomed to their villany.

[Brecca]

Though you quote it, you do not emphasize the fundamental qualifier of the Freedmen's Bureau Act of 1866: "in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion...". That's quite a circumscription, one which any court today should disregard as superseded by subsequent events; however, President Johnson vetoed this bill and it wasn't overridden by the Congress--you're relying on invalid law when you make that argument (rather unseemly for a law professor, no?).

However, i do understand the Second Amendment, and can even--as a leftist law-student--concede that it confers an individual right. However, it's initial qualifications should not be ignored by anyone who considers himself an "originalist" or even a constitutional realist: "A well regulated Militia being necessary to the security of a free State...".

Why "well regulated", which appears no where else in the Constitution? No one denies that the federal government can regulate acceptable exposure to radiation, though the relationship between that exposure and death or great bodily harm is more tenuous than the relationship to exposure to a bullet and death or great bodily harm. So why the insistence on an absolute, individual right? What, may we ask Justice Scalia, does "well regulated" mean to the composers of this Amendment and the legislative bodies that passed it?

And why the focus on the freedom of the State in the amendment? Should we just ignore this, or perhaps circumscribe the individual right to gun ownership within a well-regulated framework the serves to ensure the continued freedom of the state, like (traditionally) in the National Guard?

Answer me this, please: If the Framers meant for us citizens to have an unabridged, individual right to gun ownership, why doesn't the Second Amendment read: Every citizen can own a gun? And no relying on laws that were never on the books.

[1will]

The upcoming Supreme Court decision on the 2nd Amendment should be very interesting. I can imagine the Constitutionalists on the Court arguing in favor of the 2nd Amendment being an individual right. They'll no doubt use all of the arguments listed in the column above, use the writings of The Founding Fathers, the State Constitutions (which were largely written by The Founding Fathers and often clearer on gun rights) and talk of how 'People' seems to mean citizens in the rest of the Bill Of Rights.
The Liberals will no doubt make up stuff and use laws from around the world to justify their opinions. Whatever craziness they come up with should be interesting and entertaining.