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.