Wednesday, November 28, 2007

Second Amendment Debate

Yesterday afternoon I debated Robert Levy of the Cato Institute, one of the lawyers for the plaintiffs in Heller v. D.C., in an event jointly sponsored by the Columbia chapters of the American Constitution Society and the Federalist Society. A rousing good time was had by all, or at least by me.

During the course of our debate, Dr. Levy offered the following example. Suppose, he said, that we had a constitutional provision that read: "A well-educated electorate, being necessary to the democratic self-governance of a free State, the right of the people to read books shall not be infringed." (I may not have reproduced his precise wording but that was the gist.) If someone wanted to read a book for pleasure, Dr. Levy said, surely the "Book Amendment" would protect that right, notwithstanding the fact that it was not part of any formal course of education.

Fair enough, but, said I (and say I now for wider distribution), suppose that in an obscenity prosecution, a defendant claims that a magazine consisting of pornographic pictures and text constitutes a protected "book" within the meaning of the Book Amendment. Wouldn't we want to construe the word "books" in light of the introductory language? Of course, someone could say that education doesn't refer only to formal education, and that pornographic books (and by extension, magazines) can play a role in educating people, in the broad sense of education. It would then be open to a defender of the obscenity law to say that the Book Amendment embodies a conception of freedom to read that must be tied to democratic participation, and that pornography (whether in books, magazines or other media) does not advance democratic participation in the way that other books do. I don't want to say which side in this argument would be right. I simply mean to point out that even in this example that is supposed to prove that the operative clause of a text like the Second Amendment can be broader than the purpose clause, we would want to use the purpose clause to guide our interpretation of the operative clause.

To be clear, even if Dr. Levy's side loses this particular argument, they can still win the case by showing that the purpose clause actually encompasses (or at least does not rule out) the possibility that there is a right to keep firearms for personal protection against private violence. Proponents of the individual right reading of the Second Amendment in fact do make such arguments. But these are, at least in my view, substantially harder arguments to make than they would be if the Second Amendment simply said "the right of the people to keep and bear Arms shall not be infringed." Even then, this claim would be vulnerable to the objection that to "bear" arms is to carry them in a military context, but the word "keep" would provide some support for the individual right interpretation.

10 comments:

Benjam said...

mike-

i love the fact that you are now calling it the "purpose clause" rather than using the term "preamble." i really dont blame you because i think you've got the harder argument.

your example with the porngraphic magazine ends with the following:

I simply mean to point out that even in this example that is supposed to prove that the operative clause of a text like the Second Amendment can be broader than the purpose clause, we would want to use the purpose clause to guide our interpretation of the operative clause.

who says we (presumable meaning people that might support an obscenity prosecution-- i know you were debating the federalists) would want that? i could think of numerous ways to defeat the book amendment defense without resorting to the preamble. if i'm a member of the federalist society who likes to prosecute pornographers, i could argue that the banned material (the photos) aren't protected reading. or i could simply argue that the state has a compelling interest in banning it.

it goes back to the earlier discussion we had which goes to my essential agreement with volokh: you dont refer to a preamble as guide if the operative clause is unambiguous.

i'm as worried about guns as any liberal urbanite. jurisprudentially, i'm not of the belief that the term "arms" encompasses any and all forms of weaponry. so even within an individual right's based view, there is still room for legitimate restrictions. that's how it goes for me. i give larry tribe credit for following the dictates of his reasoning. pretty soon we'll have a brand new playing field.

Sobek said...

In both the Second Amendment and Levy's hypothetical, the operative clause refers to "the" right, which pre-exists independently of the amendment. The purpose clause states a good reason to preserve that right (not necessarily the exclusive reason), which is defined by history, rather than invented at the time the amendment is ratified. As a result, we do not read the operative clause in the light of the purpose clause, because the right predates and historically has been broader than the purpose clause.

In the case of the obscenity prosecution, the issue is whether obscene materials were protected by the pre-existing right before the amendment was adopted. If not, then I would argue we could look to the purpose clause to determine whether the Amendment was intended to expand the previously existing right.

egarber said...

The purpose clause states a good reason to preserve that right (not necessarily the exclusive reason), which is defined by history, rather than invented at the time the amendment is ratified. As a result, we do not read the operative clause in the light of the purpose clause, because the right predates and historically has been broader than the purpose clause.

So does that mean you think there is no difference between the actual 2nd amendment and a hypothetical one that merely had the operative clause and nothing else?

I'm in the individual rights crowd, but I'm also skeptical of theories that render words meaningless in the constitution.

Sobek said...

"...but I'm also skeptical of theories that render words meaningless in the constitution."

Fair enough, although the Supreme Court has done so (including with the Constitution's preamble). But I'm not suggesting the purpose clause is meaningless. It is a statement of intent, designed to show why X is a good idea, without necessarily limiting X.

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