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.


Shag from Brookline said...

Regarding Mike's " First, to his credit, Justice Scalia was 'not a nut.'"

I agree, but only because of the extensive dicta in Heller (5-4, 2008). [I think it important to always reference the "5-4" feature of Heller.] Consider how delighted 2nd A absolutists were with the decision. There's probably a story in the files of the Justices on the role of such dicta in getting to a majority. Since Heller, and McDonald, SCOTUS has declined cert for the most part in efforts to expand the basic finding of Heller regarding the individual right to keep and bear certain arms for self-defense in the home. Many states have enacted laws under their views of the 2nd A that seem in conflict with the dicta, going well beyond the basic holding of Heller (and McDonald which went along with the Heller dicta). How limiting has the Heller dicta been?

The 2nd A does not seem to have amended the Militia Clauses of the 1787 Constitution. Such Clauses provided a means whereby the central government could "call" a state Militia to its services, including efforts at insurrection in a state or states.

Michael C. Dorf said...

Shag's point in the last paragraph is quite important. It's why I referred in a 2000 article to the "puzzling" Second Amendment. Given the ability of the national government to take over the state militias in times of crisis, the Second Amendment doesn't seem to perform the role of protecting state militias. The article is at

Now that could be taken as evidence for Scalia's view: See, the Second Amendment doesn't make sense as a means for preserving the state militias, so it must be about something else, like private gun ownership. The problem is that that's ahistorical, and Scalia himself doesn't say that. He acknowledges that the main reason for codifying the right was to protect state militias. Bottom Line: The framers goofed!

Joe said...

As filibustered Obama nominee Victoria Nourse argues, we should not let originalists get away with in effect amending the text:

(She came to mind today because she has written a lot on legal interpretation & today that arose in multiple Supreme Court opinions, including a debate over usage of Senate reports.)

I continue to think the result in Heller is defensible but find the use of history dubious (not a gigantic fan of all Stevens said there either). I would have appreciated a Kennedy type opinion, a sort of living originalist take on how understandings change over time. Alito in his own opinion in McDonald v. Chicago in effect did some of that.

Finally, I noted elsewhere a preference of the term "gun regulation" over "gun control." After all, a well REGULATED militia is necessary for a free state.

And, per Shag's comment, Art. I does suggest what the militia is there for, citing reasons Congress can call it up (how Madison would have felt about the events of 1861 would be interesting). People who think the 2A is merely there so people have guns to defeat a tyrannical central government miss this point. The militia is a governmental institution, like voting and jury duty. Thus, e.g., if public unrest occurred, it could be called up to deal with it, instead of a professional military force.

Joe said...

I'd add a basic point of the Bill of Rights was to emphasize certain rights, which could possibly be wrongly abridged by use of national power. Congress added a preamble when submitting them to the states -- part of the point was "declaratory" -- a sort of underlining.

2A in that respect underlined the importance of the militia and the right to keep and bear arms. Like the 1A, some might argue there wasn't much of a need for it. Where would Congress, e.g., claim to get the power to interfere? Some thought the power to "arm" would mean the power to disarm. So only a select group (propertied white males?) would form the militia. The 2A therefore underlines "the people" as a whole belonged.

BTW, U.S. v. Miller itself included some interesting discussion of history.

Unknown said...

It certainly would be an interesting USSC decision that concluded the authors goofed. Therefore, I guess we can pretty much start from scratch, again. What conclusions would you like today?

I have a simple question for anyone with any interpretation of the second amendment.
Define who, exactly, would have this right under your interpretation.

Of course, the first problem is that any time you have to define a special list of people to whom the "right" applies, then you probably have a "privilege "and not a "right." You certainly wouldn't say that people have a "right" to free speech only if they are part of some government agency.

I believe the problem starts when people read "Well regulated militia ". They think it means "national guard/state police with lots of rules". It doesn't.

At the time, there were the "regular army " troops and the "irregular " militia with their home hunting weapons. "Well regulated " would be best expressed in modern terms as "Well trained and equipped ".

The "militia " was any male over 18 who may be called to defense at any time, with his own weapons. Such weapons included things like cannons and Gatling Guns during the Civil War.

If you assume that militia means "state police " then you have at least two problems. First, a restricted right is not a right. Second, no member of any organized military group has any "right to bear arms" by any interpretation. They bear arms only at the pleasure and command of their commander. If the commander says hand them over, they must do so.

Therefore, anything but a plain individual right fails in its own explanation.

Consider what The second amendment would be if you just substituted the meanings of the words in question for a chosen interpretation.
A body of well trained and equipped citizens over 18, being necessary to the security of a free state,the right of the people to keep and bear arms shall not be infringed.
A tightly controlled state police, being necessary to the security of a free state, the right of the members of that government agency to keep and bear arms shall not be infringed.

In which case you have to ask: Where else in the Constitution are the words "the people " used to refer to a government agency?

I would also ad that,if you grew up in the 1950s and 1960s and were on the school rifle team, the obvious interpretation doesn't seem so crazy.

Joe said...

The word "privilege" in the 14th Amendment was understood to be a "right" so the words very well overlap.

But, if a "special list" is a problem, what does it tell us that only white adult males belonged to the militia traditionally, and even there you would have to exempt certain people like felons. In the Constitution, "the people" have a right to vote in various respects. It was limited in a range of ways traditionally. Serving as a jury is a "right." Ditto. All three things here are public in character. I'm not sure where that gets us. Finally, traditionally, rights could be collective in character as seen in the Magna Charta on down.

I think the original understanding (fwiw) was that law abiding able bodied adult males of a certain age (that is, not eighty year olds) were members of the militia, so "the people" for the time covered a broad class. Over time, it expanded, so today, e.g., keeping gays out of the militia would be a problem.

Like voting and jury duty, both deemed essential to freedom, the milita provided the people a special check on the government. Finally, "the people" collectively have power as referenced in the 10th Amendment to do things like legislate directly by referendum, again per rules set forth by the government, not mere individual agency.

People were called up when necessary but "arms" basically was understood to mean guns. Cannon was something a professional army would provide, not something expected for the average member of the militia. The militia act of 1792 gives you a taste, requiring a: musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, ¼ pound of gunpowder, 20 rifle balls, a shooting pouch, and a knapsack.

"Well" and "regulated" aren't hard words to understand and "trained" and "equipped" covers some ground but safe storage, keeping guns away from those unfit, dealing with dangerous and unusual guns [like the 1A not covering every species of speech, certain "arms" would be not protected) etc. would also be important.

Being on a school rifle team is perfectly sensible, is not the same thing as the school obligated to have one & doesn't even tell me if someone has the right to take the gun home with them.