Wednesday, February 21, 2018

Federalist 46 and the Second Amendment

by Michael Dorf


This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton, it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

In Federalist 46, Madison addresses the fear that the newly proposed federal government would become tyrannical. His chief strategy throughout the Federalist is to point to the republican character and the federal character of the new government as safeguards against its turning against the People or the States. In 46, he indulges the assumption that these safeguards fail. Not to worry, Madison assures readers. In that event, the People will take up arms and defeat the national tyrant on battlefields.

Federalist 46 makes a brief appearance in Justice Scalia's majority opinion in the Heller case, but it is an awkward one, because Madison's concern is so obviously insurrection against the federal government by state-organized militias rather than an individual right to self-defense against private violence in defiance of federal (and, in the McDonald case, state) gun-control laws. To be sure,  Scalia cites Federalist 46 only for the proposition that "militia," as used in Founding-era documents, referred to the body of the (white male able-bodied) people. Even that point is tendentious, however, as Madison quite clearly has in mind armed individuals coming to serve in organized state militias. He notes that "the people are attached" to the state governments, noting that "the militia officers are appointed" by state rather than federal authority. Scalia is not wrong that the term "militia" at the Founding could be used to refer to the body of the (white male able-bodied) people, not just the organized militia. But that's not how Madison uses the term in Federalist 46.

In any event, the thrust of Scalia's argument in Heller is that what he calls the "prefatory clause" of the Second Amendment doesn't restrict the plain meaning of the "operative clause." That's debatable, but let's concede the point. Still, why can't the prefatory clause expand the meaning of the operative clause beyond what one might think it covers if it otherwise seemed to be chiefly (or at all) about self-defense against criminals? Reading Federalist 46 and just about every other relevant Founding-era source makes clear that the reason Anti-Federalists and others wanted something like what became the Second Amendment was to protect the right of insurrection. And even Scalia accepts a version of this point. He writes in Heller that the
prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.
Let's concede for the sake of argument Scalia's point that "the right to keep and bear arms" includes firearms for self-defense and hunting. Still, his argument seems to run into trouble with respect to the question of what arms are protected and to what extent, because he treats the prefatory clause as having no bearing on the question. That's quite odd. If (as Scalia concedes) the purpose of codification of the right is to prevent elimination of the militia, and if, as Madison says in Federalist 46 and a great many other documents of the period argue, the main reason to prevent the elimination of the militia is to preserve the states' ability to defend themselves or foment revolution against a tyrannical federal government, then that purpose surely ought to inform interpretation or construction of the operative clause. If we are unsure of whether, say, the Second Amendment protects the right to private possession of M-16 machine guns, shouldn't we look to whether such weapons would be useful for a state militia in resisting a tyrannical federal government? And isn't the answer obviously yes?

Yet Scalia casts aside the prefatory clause as a guide to resolving ambiguity, turning instead to his understanding of tradition to say that the Second Amendment only protects those arms in common use for lawful purposes, excluding "dangerous and unusual weapons." He thinks that an M-16 is dangerous and unusual, so it can be banned. He writes:
 It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Scalia might say that the Second Amendment doesn't protect a right to private ownership of distinctly military weapons like RPGs and tactical nukes, on the ground that this is not the sort of multipurpose weapon that an individual would possess. They're the modern analogues of cannons (which the government would have supplied) rather than pistols and muskets (which militia members would have brought with them to muster). But that doesn't dispose of machine guns, which people can and do own privately. To render machine guns unprotected, all of the work in the foregoing paragraph is done by the phrase "lawful weapons," which is quite obviously circular. If there is a Second Amendment right to possess machine guns, then they would be "lawful."

Don't get me wrong. I'm glad that the Court, if it was going to protect a right to private possession of firearms, decided not to protect machine guns and that two federal appeals courts have decided not to protect semiautomatic rifles (as I discuss in the column). But it's simply not true that these limits can be clearly traced to the text or original understanding of the Second Amendment.

Rather, they come from two basic places. First, to his credit, Justice Scalia was "not a nut." And second, despite its historical pedigree, the insurrectionist understanding of the Second Amendment was largely discredited by the "militia movement" of the 1990s and its poster child, Timothy McVeigh. (The insurrectionist view ought to have been discredited by the Civil War, but that's a story for another time.) Thus, as Reva Siegel has persuasively argued, the understanding of the Second Amendment that Scalia and the Court attributed to the Framers was actually forged by the politics of the late 20th century.

Meanwhile, just yesterday, Justice Thomas dissented from the denial of the petition for a writ of certiorari in Silvester v. Becerra. He complained that although the Ninth Circuit claimed it applied intermediate scrutiny in a challenge to California's law imposing a 10-day waiting period for the purchase of firearms by people who already own firearms, the court actually applied rational basis scrutiny. His dissenting opinion laments that by failing to grant cert in this case or other Second Amendment cases, his colleagues are permitting the lower courts to treat the Second Amendment as a second-class right. Justice Thomas doubts that the Court would treat "favored" rights like abortion, free speech, or the right to be free from unreasonable searches and seizures so cavalierly.

I won't address whether that complaint is fair or not. I will close by noting that Justice Thomas seems especially outraged that rights he regards as made up -- like the rights to abortion and same-sex marriage -- get greater solicitude than the right to keep and bear arms. He complains that in the Ninth Circuit "rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text."

That's a nice rhetorical move, but it overlooks the extent -- documented above -- to which the understanding of the Second Amendment articulated in Heller and McDonald is as much of a modern invention as the understanding of liberty articulated in Roe v. Wade and Obergefell v. Hodges is. Notably, Justice Thomas joined Justice Scalia's Heller opinion in full, without writing separately. He did write separately in McDonald, but only to say that he would root incorporation in the Privileges or Immunities Clause rather than the Due Process Clause. Justice Thomas has never expressed disagreement with Justice Scalia's atextual, ahistorical limits on the meaning of "arms" in Heller.

Maybe Justice Thomas is right that the Second Amendment should be treated the same way as other constitutional rights. But even if so, he's wrong to think that there is any irony in giving greater protection to "made up" rights like abortion or same-sex marriage than to the "enumerated" Second Amendment right. The Second Amendment as described by the Court in a landmark opinion Justice Thomas joined is no less made up than those other rights.