Newsgroups: talk.politics.guns From: [an 13795] at [anon.penet.fi] (Miquel Cartero) Date: Thu, 29 Dec 1994 06:01:45 UTC Subject: Van Alstyne 2/2 continued>>>>> Footnotes: -------------------------------------------- + William R. and Thomas L. Perkins Professor of Law, Duke University School of Law. 1. The subject is that of "A well regulated Militia" -- a militia the amendment declares to be "necessary to the security of a free State." U.S. CONST. amend. II. But it is hard to say on first reading whether the reference is to a well-regulated _national_ militia or, Instead, to a well-regulated _state_ militia (i.e., a militia in each state). Perhaps, however, the reference is to both at once--a militia in each state, originally constituted under each state's authority, but subject to congressional authority to arm, to organize, and to make provision to call into national service, as a national militia. The possibility that this may be so tends to send one looking for other provisions in the Constitution that may help to clear this matter away. And a short search readily turns up several such provisions: Article I, section 8, clauses 15 and 16, and Article II, section 2, clause 1. See infra note 16. 2. U.S. CONST. amend. II. 3. For example, one might well still be uncertain of the breadth of the right to keep and bear arms (e.g., just what _kinds_ of "Arms"?). 4. U.S. CONST. ammend. IV. 5. For example, does the protection of "houses" and "effects" from unreasonable searches and seizures extend to trash one may have put outside in a garbage can? May it matter whether one has put the can itself outside one's garage or farther out, beside the street? See California v. Greenwood, 486 U.S. 35, 37 (1988). 6. U.S. CONST. amend. VI. 7. Id. amend. VII. 8. For example, with respect to the kind of "Arms" one may have. Perhaps these include all arms as may be useful (though not exclusively so) as an incident of service in a militia--and indeed, this would make sense of the introductory portion of the amendment as well. See United States v. Miller, 307 U.S. 174, 178 (1939). 9. So, for example, though the Sixth Amendment provides a right to a "speedy" and "public" trial whenever one is accused of a (federal) crime, the amendment does not declare just _how_ "speedy" the trial must be (i.e., exactly how soon following indictment the trial must be held) nor _how_ "public" either (e.g., must it be televised to the world, or is an open courtroom, albeit with very limited seating, quite enough?). And the Fourth Amendment does not say there can be _no_ searches and seizures--rather, only no "unreasonable" searches and seizures. Yet there is a very substantial body of highly developed case law that has given this genuine meaning and effect. Likewise, when the Sixth and Seventh Amendments speak of the right to trial by "jury," then (even as is true of the Second Amendment in its reference to "Arms"?), though each of these amendments is silent as to what a jury means (a "jury" of how many people? a "jury" selected in what manner and by whom?), the provision means to be--and tends to be--given some real, some substantial, and some constitutionally significant effect. The point is, of course, that though there are questions of this sort with respect to _every_ right furnished by the Bill of Rights, the expectation remains high that the right thus furnished will neither be ignored--treated as though it were not a right at all--nor so cynically misdefined or "qualified" in its ultimate description as to be reduced to an empty shell. It is only in the case of the Second Amendment that this is approximately the current state of the law. Indeed, it is only with respect to the Second Amendment that the current state of the law is roughly the same as was the state of the law with respect to the First Amendment's guarantees of freedom of speech and of the press as recently as 1904. As a restraint on the federal government, the First Amendment was deemed to be a restriction merely on certain kinds of prior restraint and hardly at all on what could be forbidden under threat of criminal sanction. See, e.g., Patterson v. Colorado, 205 U.S. 454, 462 (1907). As to the states, the amendment was not known as necessarily furnishing any restraint at all. See id. 10. The most one can divine from the Supreme Court's scanty decisions ("scanty" is used advisedly--essentially there are only two) is that such right to keep and bear arms as may be secured by this amendment may extend to such "Arms" as would be serviceable within a militia but not otherwise (so a "sawed-off" shotgun may not qualify, though presumably--by _this_ test--heavy duty automatic rifles assuredly would). See United States v. Miller, 307 U.S. 174, 178 (1939); see also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (noting that legislative restrictions on the right of felons to possess firearms do not violate any constitutionally protected liberty); Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (referring to the "right of the people to keep and bear Arms" as a personal right). These casual cases aside ("casual," because in Miller, for example, there was not even an appearance entered by the defendant-appellant in the Supreme Court), there are a few 19th-century decisions denying any relevance of the Second Amendment to the states: but these decisions, which have never been revisited by the Supreme Court, merely mimicked others of the same era in holding that _none_ of the rights or freedoms enumerated in the Bill of Rights were made applicable by the Fourteenth Amendment to the states. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (citing United States v. Cruikshank, 92 U.S. 542, 553 (1875)). The shaky foundation of these cases ("shaky" because the effect was to eviscerate the Fourteenth Amendment itself) has long since been recognized--and long since repudiated by the Court in general. Notwithstanding, the lower courts continue ritually to rely upon them, and the Supreme Court quite as regularly declines to find any suitable for review. See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261, 269-70 (7th Cir. 1982) (holding that municipal handgun restrictions were constitutional), cert. denied, 464 U.S. 863 (1983). And why does one suppose that this is so? 11. See supra note 9. 12. Troops have not generally been quartered in private homes "in time of peace ... without the consent of the Owner," nor even "in time of war," U.S. CONST. amend. III, for a very long time, and no Third Amendment case has ever been decided by the Supreme Court. Evidently, a Third Amendment case has arisen only once in a lower federal court. See Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) (holding that the Third Amendment protects the legitimate privacy interests of striking correction officers in keeping their housing from being used for quartering National Guard troops). 13. For a comprehensive review of congressional action since 1934, see United States v. Lopez, 2 F.3d 1342, 1348-60 (5th Cir. 1993). 14. See, e.g., Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis and Holmes, JJ., concurring); Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes and Brandeis, JJ., dissenting); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 417 (1921) (Holmes and Brandeis, JJ., dissenting); Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes and Brandeis, JJ., dissenting). See generally SAMUEL J. KONEFSKY, THE LEGACY OF HOLMES AND BRANDEIS 181-256 (1956) (reviewing the Holmes-Brandeis legacy of the First Amendment). 15. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); GERALD GUNTHER, CONSTITUTIONAL LAW 408-10 (12th ed 1991). The Slaughter-House Cases denied that the Privileges and Immunities Clause of the Fourteenth Amendment extended any protection from the Bill of Rights against the states. Within three decades, however, the Court began the piecemeal abandonment of that position (albeit by relying on the Due Process Clause instead). See Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897) (applying the Fifth Amendment prohibition against the taking of private property for public use without just compensation and holding it to be equally a restraint against the states). In 1925, the Court proceeded in like fashion with respect to the Free Speech Clause of the First Amendment, see Gitlow, 268 U.S. at 666, and subsequently with respect to most of the rights enumerated in the Bill of Rights (exclusive, however, of the right to keep and bear arms). As already noted, the Court has declined to reexamine its 19th century cases (Presser and Cruikshank) that merely relied on the Slaughter-House Cases for their rationale. Cf. discussion infra Part IV. 16. Article I vests power in Congress "[t]o raise and support Armies," i.e., to provide for a national standing army as such, see U.S. CONST. art. I, S 8, cl. 12. It is pursuant to two different clauses that Congress is given certain powers with respect to the militia, such as the power "for _calling forth the Militia_ to execute the Laws of the Union, suppress Insurrections and repel Invasions," id. cl. 15 (emphasis added), and the power "[t]o provide for organizing, arming, and disciplining, _the Militia_, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of _training the Militia_ according to the discipline prescribed by Congress," id. cl. 16 (emphasis added). So, too, the description of the executive power carries over the distinction between the regular armed forces of the United States in a similar fashion. Accordingly, Article II, section 2 provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States, _and of the Militia_ of the several States, when called into the actual Service of the United States." Id. art. II, S 2, cl. 1 (emphasis added). 17. And it is from the people, whose right this is, that such militia as the state may (as a free state) compose and regulate, shall be drawn--just as the amendment expressly declares. 18. Compare the utter incongruity of this suggestion with the actual provisions the Second Amendment enacts. 19. Compare this incompatible language and thought with the actual provisions of the amendment. Were the Second Amendment a mere federalism ("States' rights") provision, as it is not, it would assuredly appear in a place appropriate to that purpose (i.e., not in the same list with the First through the Eighth Amendments, but nearby the Tenth Amendment), and it would doubtless reflect the same federalism style as the Tenth Amendment; for example, it might read: "Congress shall make no law impairing the right of each state to maintain such well regulated militia as it may deem necessary to its security as a free state." But it neither reads in any such fashion nor is it situated even to imply such a thought. Instead, it is cast in terms that track the provisions in the neighboring personal rights clauses of the Bill of Rights. Just as the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects ... shall not be violated," U.S. CONST. amend. IV (emphasis added), so, too, the Second Amendment matches that language and likewise provides that "the right of the people to keep and bear Arms, shall not be infringed," id. amend. II (emphasis added); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) ("The Second Amendment protects 'the right of the people to keep and bear Arms' ..."). In further response to the suggestion that the Second Amendment is a mere States' rights clause in analogy with the Tenth Amendment (by, e.g., Keith A. Ehrman & Dennis A. Henigan, _The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?_, 15 U. DAYTON L. REV. 5, 57 (1989)), see STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984). As Halbrook notes, In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for _no known writing surviving from the period between 1787 and 1791 state such a thesis_. Id. at 83 (emphasis added). 20. See supra note 16 and accompanying text. 21. U.S. CONST. amend. II (emphasis added). In James Madison's original draft of the amendment, moreover, the reference is to "a free country" (and not merely to "a free State"). See BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1026 (1971). 22. Once again, see the amendment, and compare the difference in thought conveyed in these different wordings as they might appear, in contrast, in actual print. 23. See, e.g., XIANFA (1982) [Constitution] art. 55, cl. 2 (P.R.C.), translated in THE CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA 41 (1983); infra note 44. 24. A position evidently preferred by many today in this country as well, with the apparent approval even of the ACLU. See AMERICAN CIVIL LIBERTIES UNION, POLICY GUIDE OF THE AMERICAN CIVIL LIBERTIES UNION 95 (1986) ("Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."). It is quite beyond the scope of this brief Essay to attempt to account for the ACLU'S stance--which may even now be undergoing some disagreement and internal review. 25. THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961). 26. Id. NO. 84 at 513-14 (Alexander Hamilton). 27. See, e.g., Leonard W. Levy, _Bill of Rights (United States), in 1 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 113, 114-15 (Leonard W. Levy et al. eds., 1986). 28. See supra note 16. 29. U.S. CONST. art. I, S 8, cls. 12-13. 30. Id. cl. 15. 31. Id. cl. 16 (emphasis added). 32. Id. 33. Id. (emphasis added). 34. See THE FEDERALIST NOS. 28, 29, 84 (Alexander Hamilton); id. No. 46 (James Madison) (Clinton Rossiter ed., 1961). 35. Id. NO. 29 at 182, 186 (Alexander Hamilton) (emphasizing this point). 36. See id. at 185-87. 37. See id. NO. 46 at 299-300 (James Madison). 38. Id. NO. 84 at 512-14 (Alexander Hamilton). 39. See JOYCE L MALCOLM, TO KEEP AND BEAR ARMS 164 (1994). William Rawle, George Washington's candidate for the nation's first attorney general, made the same point. See WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125-26 (2d ed. 1829). 40. THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270-71 (1880). To be sure, Cooley went on to note that the Second Amendment had, as a "further" purpose (not the chief purpose--which, as he says, was to confirm the citizen's personal right to keep and bear arms--but as a "further purpose"), the purpose to preclude any excuse of alleged need for a large standing army. Id.: see also PA. CONST. of 1776, art. VIII ("That the people have a right to bear arms for the defense of themselves, and the state; and as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up: and that the military should be kept under strict subordination to, and governed by the civil power."). 41. 1 WILLIAM BLACKSTONE, COMMENTARIES *129, *141. 42. Id. at *144. 43. Id. (emphasis added). Against this background, incidentally, the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989), may be important to take into account in understanding the underpinnings of the personal right to keep and bear arms in the Blackstone minimal sense of the right to keep arms for self-preservation itself. To the extent that there is no enforceable constitutional obligation imposed on government in fact to protect every person from force or violence--and also no liability for a per se failure to come to any threatened person's aid or assistance (as _DeShaney_ declares altogether emphatically)--the idea that the same government could nonetheless threaten one with criminal penalties merely "for having and using arms for self-preservation and defense" becomes impossibly difficult to sustain consistent with any plausible residual view of auxiliary natural rights. See also Nicholas Johnson, _Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment_, 24 RUTGERS L.J. 1, 64-67 (1992) (collecting prior articles and references to the strong natural rights history of the personal right to possess essential means of self defense). An impressive number of authors, whose work Nicholas Johnson reports (and to which he adds in this article), have sought to locate the right to keep and bear arms in the Ninth Amendment. They note that the Ninth Amendment provides precautionarily that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX. And they go forward to show that the right to bear arms was a right of just this sort. i.e., that "the right to keep and bear Arms" was itself so utterly taken for granted, and so thoroughly accepted, that it fits the Ninth Amendment's description very aptly. See Johnson, supra, at 34-37. Unsurprisingly, however, the sources relied upon to show that this was so, strong as they are (and they are quite strong), are essentially just the very same sources that inform the Second Amendment with respect to the predicate clause on the right of the people to keep and bear arms. That is, they are the same materials that also show that there was a widespread understanding of a common right to keep and bear arms, which is itself the express right the Second Amendment expressly protects. Recourse to the same materials to fashion a Ninth Amendment ("unenumerated") right is not only largely replicative of the Second Amendment inquiry, but also singularly inappropriate under the circumstances--the right to bear arms is not left to the vagaries of Ninth Amendment disputes at all. 44. E.g., XIANFA [Constitution] art. 55, cl. 2 (P.R.C.), translated in THE CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA 41 (1983) ('it is the honourable duty of citizens of the People's Republic of China to perform military service and join the militia in accordance with the law."). 45. See MALCOLM, supra note 39, at 135-64 (tracing the English antecedents and reviewing the full original history of the Second Amendment). Professor Malcolm concludes, exactly as Thomas Cooley did a century earlier, see supra note 40, that [t]he Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty. First, it was meant to guarantee the individual's right to have arms for self-defence and self-preservation. Such an individual right was a legacy of the English Bill of Rights [broadened in scope in America from the English antecedent].... The clause concerning the militia was not intended to limit ownership of arms to militia members, or return control of the militia to the states, but rather to express the preference for a militia over a standing army. MALCOM, supra, at 162-63. For other strongly confirming reviews, see, e.g., SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE JUDICIARY, THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2d Sess. (1982); HALBROOK, supra note 19, at 67-80; David I. Caplan, _Restoring the Balance: The Second Amendment Revisited_, 5 FORDHAM URB. L.J. 31, 33-43 (1976); Stephen P. Halbrook, _The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment_, 26 VAL. U. L. REV. 131 (1991); David T. Hardy, _Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment_, 9 HARV. J.L. & PUB. POL'Y 559, 604-15 (1986); David T. Hardy, _The Second Amendment and the Historiography of the Bill of Rights_, 4 J.L. & POL. 1, 43-62 (1987); Don B. Kates, Jr., _Handgun Prohibition and the Original Meaning of the Second Amendment_, 82 MICH. L. REV. 204, 206, 211-45 (1983); Sanford Levinson, _The Embarrassing Second Amendment_, 99 YALE L.J. 637, 645-51 (1989); Robert E. Shalhope, _The Armed Citizen in the Early Republic_, 49 LAW & CONTEMP. PROBS., Winter 1986, at 125, 133-41. But see Ehrman & Henigan, supra note 19; Dennis A. Henigan, _Arms, Anarchy and the Second Amendment_, 26 VAL. U.L. REV. 107, 111 n.17 (1991) (listing additional articles by others). 46. Compare the claim of a power in government to require "licensing" the right to keep arms. 47. The Second Amendment was originally the fourth amendment of twelve approved by the requisite two-thirds of both houses of Congress in 1789 and at once submitted for ratification by the state legislatures. Because only six states approved either the first or second of these twelve amendments during the ensuing two years (1789-1791), however, neither of these was adopted (since, unlike the others, they failed to be confirmed by three-fourths of the states). So, what was originally proposed as the third amendment became the First Amendment and what was originally proposed as the fourth amendment became the Second Amendment in turn. (On May 22, 1992, however, the original proposed second amendment of 1789 was declared by Congress to have acquired sufficient state resolutions of ratification as of May 7, 1992, as also itself to have become effective as well. The result is that what was originally submitted as the second amendment has become the Twenty-Seventh Amendment instead.) See William Van Alstyne, _What Do You Think About the Twenty-Seventh Amendment?_, 10 CONST. COMMENTARY 9 (1993). 48. See Barren v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833) ("These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments."). 49. See U. S. CONST. amend. XIV. 50. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Jacob Meritt Howard). Senator Howard is speaking here--and in his ensuing remarks--in explanation of the "first section" of the Fourteenth Amendment that provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ...." 51. Id. at 2766. 52. Id. at 2765 (emphasis added). 53. Id. at 2766 (emphasis added). For the most recent review of this matter, with useful references to the previous scholarship on the same subject, and reaching the same conclusion still again, see Richard L Aynes, _On Misreading John Bingham and the Fourteenth Amendment_, 103 YALE L.J. 57 (1993). 54. See Robert Dowlut, _Federal and State Constitutional Guarantees to Arms_, 15 U. DAYTON L. REV. 59, 79 (1989) ("State courts have on at least 20 reported occasions found arms laws to be unconstitutional."); Robert Dowlut & Janet A. Knoop, _State Constitutions and the Right to Keep and Bear Arms_, 7 OKLA. CITY U.L. REV. 177 (1982) (reviewing state constitutional clauses and the right to keep and bear arms). 55. The inclusion of this entitlement for personal protection is, in the Fourteenth Amendment, even more clear than as provided (as a premise) in the Second Amendment itself. It was, after all, the defenselessness of Negroes (denied legal rights to keep and bear arms by state law) from attack by night riders--even to protect their own lives, their own families, and their own homes--that made it imperative that they, as citizens, could no longer be kept defenseless by a regime of state law denying them the common right to keep and bear arms. Note the description of the right as a personal right in the report by Senator Howard. See supra text accompanying note 52. For confirming references, see also the examples provided in MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE 24, 43, 56, 72, 138-41, 164, 203 (1986); HALBROOK, supra note 19, at 107-23; Skayoko Blodgett-Ford, _Do Battered Women Have a Right to Bear Arms?_, 11 YALE L. & POL'Y REV. 509, 513-24 (1993); Robert J. Cottrol & Raymond T. Diamond, _The Second Amendment: Toward an Afro-Americanist Reconsideration_, 80 GEO. L.J. 309 (1991); Kates, supra note 45, at 254-57. For an overall responsible general review, see also Levinson, supra note 45. For the most recent critical review, however, see Raoul Berger, _Constitutional Interpretation and Activist Fantasies_, 82 KY. L.J. 1 (1993-1994) (with additional references to previous books and articles). 56. In contrast, the suggestion that it does not extend to handguns (in contrast to howitzers) is quite beyond the pale (i.e., it is wholly inconsistent with any sensible understanding of a meaningful right to keep arms as a personal right). 57. Such questions, moreover, are hardly on that account (merely as questions) necessarily hard or difficult to answer in reasonable ways, even fully conceding a strong view of the right to keep and bear arms (e.g., rules of tort or of statutory liability for careless storage endangering minors or others foreseeably put at unreasonable risk). 58. And equally with respect to the states, pursuant to the Fourteenth Amendment. 59. See supra notes 9-14 and accompanying text. 60. Unless, of course, one holds the view that it is really desirable after all that the Constitution should indeed be construed--the Second and Fourteenth Amendments to the contrary notwithstanding--to say that the right to keep and bear arms is the right to keep and bear arms as it is sometimes understood (i.e., as though it had the added words, "but only according to the sufferance of the state"). ------------------------------------------------------------------------- To find out more about the anon service, send mail to [h--p] at [anon.penet.fi.] Due to the double-blind, any mail replies to this message will be anonymized, and an anonymous id will be allocated automatically. You have been warned. Please report any problems, inappropriate use etc. to [a--m--n] at [anon.penet.fi.]