Tuesday, January 15, 2008

A Militia of One? Our Brief Says No Way

A short piece in Sunday's NY Times mentioned my debate late last year with Robert Levy of the Cato Institute, who is one of the lawyers representing the plaintiff in Heller v. D.C. , the Second Amendment case pending before the Supreme Court. The article mentions my rejoinder to the argument by Mr. Levy that the operative clause of a constitutional provision should be given its full natural meaning, even if the conditions in the prefatory clause do not hold. As I noted on this blog at the time (here), Levy provided an example in which "the right to keep and read books" is justified by a prefatory clause that states that declares "A well-educated electorate, being necessary to the self-governance of a free state . . . ." Levy thought it self-evident that the "keep and read books" clause would apply to all books, not merely those connected to educating the electorate, but I said this was hardly obvious; pornographic books, for example, might not be covered. Certainly, if one were to take an originalist persepctive, one would want to know how far the framers and ratifiers (or, on a slightly different view of originalism, a competent speaker of the English language familiar with the relevant terms of art), would have thought the "keep and read books" provision went.

Having just finished doing some work on an amicus brief in support of the District in the case, I must say how convinced I now am that---judged by traditional criteria---the best reading of the original understanding of the Secondd Amendment is that it protects a right of the States. Our brief (on which I came in near the end, joining a pro bono team including lawyers from Dewey & LeBoeuf, where I moonlight), emphasizes a number of points, but here I'll just highlight one: The ratification debates over the original Constitution---out of which came proposals for what became the Second Amendment and the Bill of Rights more broadly---focused just about exclusively on the question of whether the federal power to arm the state militias included a power to disarm the militias. The Second Amendment was overwhelmingly seen as a mechanism for ensuring state authority over arming, and regulating, the state militias, without undue federal interference.

To be sure, constitutional interpretation is not only about original understanding, but this is the ground on which proponents of the individual right view have chosen to make their case, and it now strikes me as a weak one. The Founding generation may have believed in a right to armed self-defense, but as a natural right that was not the focus of what became the Second Amendment. The best argument for an individual right of armed self-defense would thus be rooted in the Ninth Amendment (although I still think it should probably fail), but for reasons probably having more to do with ideology than tactics, most of the supporters of the individual right view appear to be allergic to that kind of argument. (Randy Barnett is an exception, as are many of the folks at Cato.)

Posted by Mike Dorf

19 comments:

Mithras said...

The Second Amendment was overwhelmingly seen as a mechanism for ensuring state authority over arming, and regulating, the state militias, without undue federal interference.

So what import does this have for the Heller case? Or federal regulation of firearms generally? If you're right, does this mean that as against the federal government, strict scrutiny applies? Don't answer, I am off to read the brief.

egarber said...

Mithras,

Just for the heck of it, I'm gonna take a shot at your question to see if I end up anywhere near the correct answer. After you read the brief, please tell me where I butcher it.

This argument matters because:

1. It gives DC the ability to say that even under an originalist understanding (often the preferred route for pro-gun interests), there's little evidence the ratifiers of the 2nd amendment were concerned about an inalienable individual right. It's more accurate to say the framers were trying to limit federal authority over state regulation of militias.

2. Since DC is a federal district and not a state, (1) basically means that the second amendment might not even apply here on the merits. There's nothing equivalent to the federal government trying to strip a state of its exclusive regulatory jurisdiction. In other words, in DC there's no mechanism to tether the operative and prefatory clauses of the second -- so the amendment is rendered moot in a way.

3. The implication is that the only place to really find the individual right is the 9th, due process clause, etc. But we all know that conservative judges can't really do that -- since it legitimizes privacy rights (sexual, reproductive, etc.)

I'm not saying this is necessarily my position -- I'm just guessing about the argument, and wasting DOL blog space on a mental exercise :)

egarber said...

2. Since DC is a federal district and not a state, (1) basically means that the second amendment might not even apply here on the merits. There's nothing equivalent to the federal government trying to strip a state of its exclusive regulatory jurisdiction. In other words, in DC there's no mechanism to tether the operative and prefatory clauses of the second -- so the amendment is rendered moot in a way.

OR, the city might say it basically IS a state -- but state-level gun control isn't subject to the second at all. It's only a curb on federal power.

How's that for a hedge?

Mithras said...

Okay, having read the brief, questions:

1. Your interpretation is that states have absolute authority over arms regulation, citing the practices of some states to ban ownership by disloyal citizens and concealed carry. Three issues with that: First, are the practices of our governments during a period of revolution and insurrection really persuasive evidence of the scope of the constitutional principles established? The Alien and Sedition Acts don't guide us with respect to interpreting the Free Speech Clause. Second, does a restriction on concealed carry really imply that the right to keep and bear arms is not individual or fundamental? We have laws against obscenity and defamation, but they aren't evidence against the importance of the right of free speech. Third, other state constitutional provisions contemporaneous with and whose text parallels that of the 2nd Amendment - such as North Carolina's - have been interpreted as granting an individual right.

2. Your interpretation implies that, as against the federal government, individuals have a right to keep and bear arms that requires heightened scrutiny. What level of scrutiny would apply?

3. Is D.C. a "free state" within the meaning of the Second Amendment as the brief interprets it?

egarber-
I think under the logic of the brief, the regulation of arms is part of the state or local police power, so D.C. doesn't have to claim it has the same power to raise a militia as a "free state" to also regulate guns. I'd like to have seen that spelled out. I think you can make an argument the other way, that the 2nd Amendment gives individuals a right as against the federal government or any other government that doesn't fit the (federalist, freedom-protecting) definition of "free state".

ctdonath said...

There is no question that, state-focused or individual-focused, the 2nd Amendment entails the right of militia members to OWN, personally, their arms. Thus one is faced with the absurdity of a citizen having a protected right to personally own arms in defense of the state, but is forbidden to use those arms in defense of himself. Surely, given the enumerated right to "keep" arms, defending one's self & home with them was so obvious to the Founding Fathers as to need no discussion.

Mithras said...

ctdonath-
the 2nd Amendment entails the right of militia members to OWN, personally, their arms.

Under the usual analysis of rights, if a person has a right then someone else must have a corresponding duty. It's not absurd to say that the people have a right with respect to the federal government that they don't have with respect to their state government, if the purpose of the right is to reinforce the power of state government.

egarber said...

Good stuff all.

Prof Dorf, if you get a moment, I think it would be good if you could post -- in very short form -- your view of the city's main constitutional arguments.

ctdonath said...

Under the usual analysis of rights, if a person has a right then someone else must have a corresponding duty.

If I have a right to free speech, who else has what duty?
If I have a right to worship as I please, who else has what duty?
If I have a right to keep my papers confidential, who else has what duty?

If I have a right to trial by jury, the jury may have a duty to serve - but only because the state aquires its power from the consent of the governed.

Whither my right to self-defense? and the means thereto? Surely I have such right, and no other has a duty to support it!

if the purpose of the right is to reinforce the power of state government.

"Right" to reinforce the power (to wit: existence) of state government?
How could such a right exist without the individual also having a right to reinforce his own power to merely exist?

Paul said...

1. The State, to not restrain it.

2. The State, to not establish one or prevent your free exercise thereof.

3. Any person or persons with whom you may have shared them under an agreement of confidentiality. Additionally, The State, to not forcibly invade it without due process.

4. No, not the Jurors. Again, the State, to provide such a jury.

A right, by necessity, is always a right to X as against Y. It is the only meaningful construct of the concept.

Michael C. Dorf said...

Paul's right in response to ctdonath, but one needn't enumerate specifics. Just read Wesley Newcomb Hohfeld's pathbreaking article on the relation between rights and correlative duties.

And egarber: Damn you with all your questions! I need to write my next blog entry (not to mention do some real work).

egarber said...

And egarber: Damn you with all your questions!

Well, when you don't know anything, all you got is questions!

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