Author & Speaker

Guns and History

Alert Reader Ron Brown of Illinois brought to my attention a recent article by Jack Rakove (a distinguished legal historian at Stanford University, and my client in the Guantanamo case) on Heller v. District of Columbia. The decision, as you all likely know, is a landmark finding that the Second Amendment created a personal right to own firearms; until the Heller case, federal courts had always read the Second Amendment right to bear arms to be connected to maintaining a well-regulated militia, as stated in the first clause of the constitutional provision.
Prof. Rakove’s argument is that the majority opinion by Justice Antonin Scalia essentially ignores the relevant constitutional history, while Justice Stevens’ dissent is much more attentive to it. The good professor manages to patronize both of the Supreme Court justices, though, referring to them as “very amateur historians.” That may be so, professor, but they were appointed by the president and confirmed by the Senate.
Quick review of the text of the Amendment: “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.”
It’s not a model of syntactic brilliance. The commas are a bit wacky, either connecting the militia clause to the right to bear arms, or separating the two clauses. Does the militia clause define the right to keep and bear arms? Or are they separate rights — one for a militia to be armed, the other for persons to be armed?
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Justice Antonin Scalia
Justice Scalia always comes at this sort of question by first asking (as he should) if the language of the provision is clear enough on its own to settle the matter. The questions through the decades since 1791 (when the Amendment was ratified) is whether it creates a “collective right” to have weapons gathered for a militia in some state-operated facility, or whether it creates a personal right to have the weapons in your possession. I should note that the provision talks about “keep and bear arms,” not solely “bear arms.” Where would the “people” keep arms other than in their homes?
As an historian, Prof. Rakove’s complaints about Justice Scalia’s opinion are (i) that he ignores the argument in 1787-89 whether Congress was to have the right to eliminate state militias, which means (to the professor) that the Second Amendment was designed solely to preserve those militias; and (ii) that Scalia recites as support for his position a dissenting opinion to ratification of the Constitution from Pennsylvania, but that dissenting opinion was an “object of derision.”
With all due respect, I’m not bowled over by these complaints. The Second Amendment could aim to preserve both state militias and a personal right to keep and bear arms. After all, the First Amendment addresses the rights of speech, freedom of religion, public assembly, and petitioning the government. And the dissenting opinion in Pennsyvlania’s ratification of the Constitution was not all that central to Justice Scalia’s reasoning.
As an advocate of gun control, I find this a difficult case. The contention that an armed citizenry will reduce crime seems to me entirely unpersuasive; an armed citizenry, the statistics show, is much more likely tol open fire on their loved ones during arguments. Still, the more I look at the Second Amendment, the more I think Scalia may have gotten it right. The history recited by Justice Stevens seems inconclusive, as well, while the language of the Second Amendment does seem to include a personal right.
Under the circumstances, I fear we are properly relegated to finding out just how much our interest in public safety will qualify the personal right just recognized by the Supreme Court.