July 6, 2010

THE RIGHT'S ROE:

Court Wrong On The Chicago Gun Case: There is no constitutional reason the states can't limit the right to bear arms. (Richard A. Epstein, 07.06.10, Forbes)

First, it helps to set out the Second Amendment in full: "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." By way of background, the militia, as a forebear to today's National Guard, was and is a state-run operation designed in 1787 to protect states against invasions from other states and to be available for call-up to the U.S. when needed "to execute the Law of the Union, suppress Insurrections and repel invasions."

Read in context, the Second Amendment limits the power of the Congress to disarm the state militia by general regulation. Ironically, the only place that this worry does not apply is to the District of Columbia, where there was no state militia to protect or disarm. But Justice Scalia's upside-down decision Heller v. District of Columbia held that this was the easiest place to apply the Amendment. Since the case was against the federal government, the incorporation doctrine was not in play. Scalia just excised the introductory clauses from the Second Amendment to make it read like some acontextual substantive right. "The right of the people to keep and bear Arms, shall not be infringed."


The Right to Bear Arms? What History Tells Us. (Nathan Kozuskanich, 3/17/08, HNN)
Previous work by legal scholars Michael Dorf and David Yassky has conclusively demonstrated that Congress used the phrase “bear arms” in a military context or to connote military action. Given that the Second Amendment was drafted by Congress this ought to end the discussion, since it would make little sense if this usage were the only time Congress departed from its orthodox meaning. Of course, one might make the dubious argument that the term was used in a less precise way outside of Congress. But, the plain fact of the matter is that the phrase “bear arms” was consistently employed in a military context not only in Congress, but also by the American press. This assertion can be backed up by empirical evidence, not the impressionistic sampling of sources that the respondent and his amici rely on, which draws heavily on sources from outside the Founding era.

William Blackstone tells us that when interpreting law “Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.” (Commentaries, 1:59). What Heller fails to address is exactly how the occasional usage of “bear arms” outside of a clearly military context can be considered common or popular usage. More importantly, the essential historical question that the respondent fails to ask is whether this idiosyncratic individual usage had any actual impact on the drafting of the Second Amendment. Did Congress ever employ “bear arms” in an individual sense? Did an individual construction of “bear arms” have any currency in the colonial and American press? The answer to both of these questions is an emphatic no.

A keyword search of the Library of Congress database (which includes Letters of Delegates to Congress, Journals of the Continental Congress, Elliot’s Debates, and the House and Senate Journals of the 1st Congress) for the term “bear arms” between 1775 and 1791, returns forty-one relevant hits, of which only four do not use the phrase “bear arms” in an explicitly military context. Of course, Heller’s lawyers feel they have absolved themselves from using these sources by implying that if the term “bear arms” was not exclusively military in meaning then there is room for an individual gun rights interpretation. But surely the issue of how this phrase was understood turns precisely on which meanings were orthodox and which were idiosyncratic. In essence, what the respondent is asking us to do is ignore the preponderance of evidence that supports a military reading of “bear arms” in favor of a few sources that do not.

Readex’s Early American Imprints and Early American Newspapers databases together encompass most of the American newspapers, pamphlets, and broadsides published in the crucial period of 1763 to 1791. The comprehensive nature of these archives can give scholars a high degree of certainly that keyword searches accurately reflect common usage since they contain most of the surviving printed material from the colonies and early Republic. The Early American Imprints series contains over 15,500 documents from 1763-1791 alone, 273 of which use the phrase “bear arms.” Disregarding reprints of the Bill of Rights, all quotations of the text of the Second Amendment in congressional debate, foreign news (even though it is usually about military actions overseas), reprints of the Declaration of Independence (even though its condemnation of Britain for forcing Americans to “bear arms against their country” has a clear military meaning), and all repeated or similar articles, 111 hits remain. Only two do not use the phrase in a military context or to connote collective military action.

Using the same method of sorting results from the 132 papers published from 1763-1791, the Early American Newspapers database returns 115 relevant hits, with all but five using a military construction of “bear arms.” The evidence, more fully explained in my forthcoming article, is clear: the dominant understanding of the term “bear arms” at the time the Second Amendment was proposed fits the militia model, not the private rights model. Even the oft quoted Tench Coxe, who believed that the people had a right to “keep and bear their private arms” made his comments on arms-bearing while discussing the need for “military forces which shall be occasionally raised to defend our country.” Indeed, the dominant model of keeping and bearing arms in the Founding era was one in which citizens kept private arms that were regulated for a particular public purpose.


Sadly, the Court's "conservatives" are just as willing to do violence to the plain meaning of the Constitution as the liberals were.

Posted by Orrin Judd at July 6, 2010 5:23 PM
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