(not quite) Dead Horse

I apologize for the dearth of posting. I had another version of this particular post just about completed a few days ago when I somehow managed to delete most of the text and then Blogger did the automatic save thing before I realized the error and could restore it. Drat and blast. Discouraged, it took me a while to get back to this thing.

Recently, in a discussion with friends, one of them made a brief and to me very interesting case that the Second Amendment is a perfect bit of Constitution to employ and examine the limitation of original intent analysis.

"Original intent" is a method of Constitutional and statutory analysis which looks to the purpose of the Framers of the Constitution or statute to determine the application of the words today. "Originalism", more generally, seeks to determine the common understanding of the meaning of the law or provision in order to apply it today. The terms are frequently conflated.


So, looking at the time the Second Amendment (text: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.") was ratified, a citizen could and in some cases was obligated to procure the most current military technology available. For example, the second Militia Act of 1792 directed "That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . ."

Around that time and for a good while thereafter, people could buy the arms the could afford. For example, there was no problem with a ship captain buying cannon to place upon his merchant vessel to defend it, or with private individuals buying cannon, mortars, and whatever advanced small arms were available.

If that understanding had continued, once the Fourteenth Amendment passed then local prohibitions on the purchase and most restrictions on carry of various weapons, including about all small arms, should have been struck down. Under the original rubric, the current restriction on the manufacture and sale (to civilians) of automatic weapons and grenades would, and should, require a Constitutional Amendment, as those would be just the weapons the people should arm themselves with to secure the freedom of the state.

That argument doesn't really do us any good now, as history developed otherwise, but it is an interesting thought and shows clearly the great difference we would see in our regulatory landscape if our courts had been strongly wedded to original intent from the time of Marbury v. Madison forward. I'm not that strong an originalist, in part because of things like the fact that it took until 1963 for the Supreme Court to realize that the right to counsel enshrined in the Sixth Amendment means that the government is required to provide a defense attorney at state expense if you can't afford one when facing serious criminal charges. The law had long before become so complex that a pro se criminal defendant was at a serious disadvantage in trying to mount a defense. I don't think the Framers considered that a problem, and perhaps an amendment should have been required to the Sixth as well, but I can't say that the decision had a bad result. Of course, a lot of folks would say that about various gun control statutes and lower court decisions upholding them, too.


I post these thoughts because the meaning and effect of the Second Amendment is coming up for Supreme Court review for the first time since the 1939 Miller case. Miller didn't really say anything useful and is a pretty wretched piece of judicial reasoning, but it was the last word from the Supremes. However, at some point in this term the Court will decide District of Columbia v. Heller, which is an appeal from a decision by the Court of Appeals for the D.C. Circuit holding that the Second Amendment preserves an individual right incompatible with the District's prohibition on the ownership of handguns (brought into the District since 1977) and extremely restrictive limitations on the possession of long arms and overturning the District statute. The principle briefs and various amicus briefs for each side have been filed and make the best reading on the ins-and-outs of the debate on the Second Amendment that I'm aware of. Go to The Volokh Conspiracy for links to the various briefs and discussion of them. Fun, chewy stuff by conlaw standards, with lots of references to common law, Revolutionary War era writing, philosophy, and various social policy arguments. Even if you don't feel like wading through Supreme Court briefs (and I mean, come on, who doesn't read legal briefs for amusement in their spare time? After all, amicus briefs can only be 9,000 words) you might want to go through the Conspiracy postings on the subjects, just to get a gist of the arguments and note the various groups chiming in on either side of the issue. I'm waiting with some trepidation to read what the Court will come up with regarding the characterization of the right guaranteed by the Second Amendment and to see if they address what level of regulation is permissible before the right of the people to keep and bear arms is infringed.



A last note on the Second Amendment, just in case anyone who stumbles on this is on the wrong (that is to say, not my) side of the gun control issue:
Much of the debate around the Second springs from the first clause, describing a well regulated militia. First, that section is a dependent clause, describing or justifying the independent clause. Unique in the Bill of Rights, it explains why the right to keep and bear arms is important but does not as a matter of either grammar or logic limit that right. Even if it did, as discussed many places "well regulated" in the common usage of the day did not mean "subject to regulation" (although the militia was) but rather "well ordered" or, even, "efficient". Also, contemporaneous statutes (the Militia Act of 1792, in the text reproduced above), defined the militia as every free and able-bodied white male between sixteen and forty-five. Updating that definition a bit in light of the end of slavery and extension of full citizenship to all races and women, you end up with a militia of all able bodied people, just about. In fact, the Virginia Declaration of Rights from 1776 characterized the militia as "composed of the body of the people". The current Militia Act, enacted in 1956, isn't quite as inclusive as the original version, but no one who has read much history can credibly argue that militia=National Guard. As noted, even if militia did equate to National Guard, it still would not limit the right of the people to keep and bear arms. This is, in part, why the idea that the Second Amendment preserves a collective right (which is to say, a right of the state or the people as a whole) is incorrect.