Posted by Jim Lindgren:
Posner, Heller, and the Original Meaning of the 2d Amendment.--
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218610663
In Dick Posner�s [1]attack on Heller, excerpted by [2]Orin Kerr,
Posner offers this �originalist� analysis:
The Second Amendment, part of the Bill of Rights added to the
original Constitution in 1791, states: "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." In other
words: since a militia, provided that it is well regulated, is a
very good thing for a free state to have, the federal government
must not be allowed to castrate it by forbidding the people of the
United States to possess weapons. For then the militia would have
no weapons, and an unarmed militia is an oxymoron.
Politically conscious Americans in the late eighteenth century
feared standing armies, having fought the British army in the
Revolution, and feared centralized government (as in Britain); and
on both counts they wanted to make sure that the states would be
allowed to have armed militias. The federal government could
regulate them but not disarm them. The fear was that in the absence
of such a provision in the Bill of Rights, the provision in Article
I of the Constitution authorizing Congress to organize, arm,
discipline, and call into service "the Militia" (a term that
embraces the state militias, because the same provision reserves
the right to train and officer "the Militia" to the respective
states) would enable Congress to disarm them. That fear surfaced in
the debates over the ratification of the original Constitution and
was, as Justice John Paul Stevens's dissenting opinion explains,
the motivation for the Second Amendment.
The text of the amendment, whether viewed alone or in light of the
concerns that actuated its adoption, creates no right to the
private possession of guns for hunting or other sport, or for the
defense of person or property. It is doubtful that the amendment
could even be thought to require that members of state militias be
allowed to keep weapons in their homes, since that would reduce the
militias' effectiveness. Suppose part of a state's militia was
engaged in combat and needed additional weaponry. Would the
militia's commander have to collect the weapons from the homes of
militiamen who had not been mobilized, as opposed to obtaining them
from a storage facility? Since the purpose of the Second Amendment,
judging from its language and background, was to assure the
effectiveness of state militias, an interpretation that undermined
their effectiveness by preventing states from making efficient
arrangements for the storage and distribution of military weapons
would not make sense.
Note first that Posner�s version of originalism focuses on the
supposed �motivation� for the Second Amendment. Posner is using
�original intent� originalism, not �original meaning� originalism.
While looking at probable intent can be revealing, it can also
deteriorate into what Randy Barnett has called �channeling the
framers.�
Second, Posner cites no early authority for his view of original
intent (or original meaning) other than the text itself and Justice
Stevens�s opinion.
As for Posner�s textual analysis, we know from Eugene Volokh�s
pathbreaking analysis of preambles in early state constitutions that
preambles were not viewed as significantly limiting the underlying
rights they granted. Even if Posner were correct that protecting state
militias was the only goal of the Amendment � and there is evidence
against this proposition and no evidence in favor of it � the framers
may still have chosen to guarantee a right broader than was necessary
to fulfill that motivation. That�s one reason it�s important to look
primarily at the language they chose, not mostly at their motivations
for acting.
But the bigger problem has already been suggested: how does Posner
know that the framers did not have broader goals for the Amendment?
There is no evidence that they intended the Second Amendment to be
limited to militia and some evidence that they didn�t. Indeed, every
contemporary authority that addressed whether the proposed or recently
adopted amendment protected an individual right described it as doing
so.
Posner states categorically what the originalist interpretation of the
text is or should be, but if he is correct, why did no framer or early
commentator ever offer that view? Why did several early commentators
treat the Second Amendment (or its drafts) as guaranteeing an
individual right, including in some cases a right for the purposes of
self-defense and hunting?
As for Posner�s hypothetical about seizing weapons in wartime, I don�t
see how it significantly advances his argument. Rights are not
absolute. First, if there is a right, then the state should be loathe
to seize weapons except in the direst of emergencies. Second, if the
state did take weapons, the state would have to pay for this taking,
as it would if it took any other property covered by property rights
protected by the state. (Also, I recall that some states (and/or
colonies) treated firearms as privileged, protecting them from
distress for debts.)
After discussing originalism, Posner then writes about changed
circumstances, an argument on which he is on much firmer ground.
BTW, Dick Posner and I are co-teaching a course in judicial behavior
this coming school year (along with Bill Landes and Lee Epstein).
Thus, I hope to explore his views on originalism in more detail in the
next few months.
On evidence from the first major commentator on the Second Amendment,
St. George Tucker, here is the leading young historian on the legal
and political history of guns in the late colonial early republic
periods, [3]Robert Churchill
:
It is clear from the Tucker's gloss on the Second Amendment in the
manuscript draft [from the early 1790s] that he saw in the
amendment a guarantee that extended well beyond the concern over
federalism that Cornell discusses. Tucker noted that "in England
the people have been disarmed under the specious precept of
preserving the game." In a note on the facing page, Tucker
commented that in England, "the right of the people to bear arms"
was by the inclusion of limiting language "entirely done away." In
this gloss, Tucker suggested that the passage of England's game
laws had in England eliminated the constitutional protection that
the Second Amendment was intended to guarantee. Tucker reiterated
this view in 1803, noting that under the game laws in England, "the
right of keeping arms is effectually taken away," while expressing
his hope that in America, "the people will never cease to regard
the right of keeping and bearing arms as the surest pledge of their
liberty."
The problem for Saul Cornell's argument is that England's game laws
prohibited citizens, the vast majority not enrolled in the militia,
from possessing firearms for private purposes. That Tucker saw the
game laws as a contravention of the right protected by the Second
Amendment is clear evidence that he understood that right to apply
in America to all citizens and to weapons owned for both public and
private purposes. Tucker's view mirrors that of Samuel Nasson and
Saumel Latham Mitchel, cited by Cornell, and of a supporter of
Samuel Adams in August 1789 who interpreted the House draft of the
Second Amendment as a vindication of Adams's earlier proposed
amendment that prohibited Congress from preventing "the people of
the United States, who are peaceable citizens, from keeping their
own arms." All of these early interpreters of the language embedded
in the Second Amendment understood it to guarantee a right to keep
arms that transcended "the inextricable connection" to militia
service that Cornell posits.
If the view of the 2d Amendment advanced by Judge Posner, Justice
Stevens, and Prof. Cornell were the original view of the framers, why
didn't any of the framers or early commentators ever say so? And why
was this new "civic rights" view rarely mentioned by anyone until
about a decade ago?
References
Visible links
1.
http://www.tnr.com/booksarts/story.html?id=d2f38db8-3c8a-477e-bd0a-5bd56de0e7c0
2. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218600363
3. http://www.h-net.org/reviews/showrev.cgi?path=277241197146579
Hidden links:
4. file://localhost/var/www/powerblogs/volokh/posts/1218610663.html
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