Undermining Our Conversation About the Right to Arms

Nicholas J. Johnson in Liberty Law Blog, June 26, 2014

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We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)

Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.

There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.

Study of the ratification debates highlights antifederalists’ worries about giving the federal government power over the militia in Article I, Section 8 of the Constitution. This, goes the argument, shows that the right to arms is not about self-defense. But parsing the ratification debates for some definitive articulation of rights created by the new federal government is simply backwards.

The Court explained in D.C. v. Heller, the prefatory militia clause may illuminate the codification of the right, but does not define the pre-existing right of the people to keep and bear arms. The crucial point here, and this cannot be repeated often enough, is that the Constitution did not create rights. Its first 10 amendments, the Bill of Rights, affirm preexisting liberties, ancient and inalienable and at the very least, the rights of Englishmen.

Our Constitution’s affirmation of pre-existing rights was eloquently articulated by the great liberal Justice William Brennan, whose name adorns the George Soros-funded Brennan Center,that has supported Michael Waldman’s work. Here is Brennan, from his in dissent in United States v. Verdugo-Urquidez (1990):

In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of Government decidedly different from their British heritage. Whereas the British parliament was unconstrained, the Framers intended to create a Government of limited powers. The colonists considered the British government dangerously omnipotent. After all, the British Declaration of Rights in 1688 had been enacted not by the people, but by Parliament. Americans vehemently attacked the notion that rights were matters of “favor and grace” given to the people from the Government. . . . Thus, the Framers of the Bill of Rights did not purport to “create” rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.

Justice Brennan was pressing for broad interpretation of the Fourth Amendment. But the principle he articulated is the same one that undergirds the Heller decision. The right of the people to keep and bear arms is not confined by the prefatory militia clause in the Second Amendment. The impulse for codification does not set the boundaries of the pre-existing right. (Plus, the explicitly codified right extends to the people, not to the militia or the states. And the right to arms that was affirmed and extended to black Freedmen by the 14th Amendment admits no serious contention that the subject was militia rights. More on that next time.)

To be sure, approaching the ratification debates as a moment of creation that gives binding, limiting instructions is not entirely off-base. Although it is glaringly wrong for understanding pre-existing rights, it is precisely the right approach for discerning the boundaries of the federal powers newly created by our Constitution.

Unlike the pre-existing, inalienable rights whose infringement sparked the American Revolution, the governmental powers established by our Constitution were entirely new to the scene. The Framers spent blood and treasure in the cause of liberty and feared the ambitions of those who get power to grab for more. So the government they created was granted limited and specifically enumerated powers.

For the Framers who created the new federal government and promoted its advantages to the people, the powers of government were considered so explicit and limited that some insisted there was really no need for a bill of rights. Pre-existing rights would be protected, said Hamilton in Federalist 84, because limited, enumerated powers were themselves a brake on the infringement of individual rights. Here is Hamilton:

I go further, and affirm that bills of rights are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Today we are square in the middle of the danger that Hamilton described. We are relegated to teasing the inalienable rights of man from a few favored portions of the Bill of Rights, with the disfavored provisions disparaged by a stingy interpretive method that fails to credit the Constitution’s broad affirmation of individual rights within a government of limited powers.

Meanwhile, and perversely, federal power is deemed to be nearly boundless. We recently heard top Senators and Representatives say that Congress unquestionably had the power to force people to buy health insurance—and if that, one wonders, why not the power to dictate flossing, broccoli-eating, and infinite other no doubt healthy mandates that are utterly corrosive of liberty. (Some find consolation in the Supreme Court’s rationalization that the edict was really a tax.)

All of this turns our constitutional structure on its head. If we took the Constitution’s creation of limited powers and affirmation of pre-existing rights seriously, the salient question about the individual right to arms would be this: Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?

For those who would answer, “The Congress shall have Power To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes”—and notice how much more limited the clause seems when you read its actual language rather than just say “the commerce power”—we should apply the kind of stingy, skepticism that Stevens, Waldman, and others would erroneously apply to the “right of the people to keep and bear arms.”

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).