"The Radical Amendment,"

by Eugene Volokh,

from the Wall St. J., May 10, 2002, p. A10

(footnotes added)



Those dangerous radicals[1] John Ashcroft and Ted Olson are at it again.  The Second Amendment, the Justice Department has just asserted in two Supreme Court briefs, protects an individual right.  People like you and me do indeed have the right to keep and bear arms.

This, a lawyer representing the anti-gun Violence Policy Center[2] opined, is a departure from what was “the government’s position for more than 60 years”—and an illegitimate one, because “people who happen to be in office temporarily shouldn’t use the office to promote their personal views.”[3]  Unnamed “scholars and gun-control advocates” called this (according to the L.A. Times) a “‘radical’ shift in position” that “alarmed” them.

Our radical Justice Department, though, turns out to be in good company.  Supreme Court Justice Joseph Story, probably the second most respected 19th century Justice—after the great John Marshall—and the author of the leading early 1800s constitutional law treatise, also took the view that the right belongs to “the citizens,” not the states.[4]

Same for Michigan Supreme Court Justice Thomas Cooley, the leading constitutional law commentator of the late 1800s.[5]  William Blackstone, the leading late 1700s British legal commentator, and a major influence on the Framing generation, saw even the much narrower English right to have arms as an individual right.[6]

Framing-era documents confirm this understanding,[7] as does the text itself.  “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,” the Second Amendment says.  The right belongs to “the people,” not the states or the National Guard.

The reference to the “Militia” only reaffirms this.  From the Militia Act of 1792[8] to the current Militia Act (enacted in 1956),[9] the “militia” has meant pretty much the adult able-bodied male citizenry age 17 to 45.  Following the Supreme Court’s sex equality decisions of the 1970s, it almost certainly includes women, too.  The two clauses both stress the Framers’ commitment to keeping the citizenry—not the states or small state-selected groups—armed.

In fact, from the late 1700s to the early 1900s, the individual rights view of the Second Amendment was the nearly unquestioned interpretation.  Virtually no court or commentator of that era reasoned that the Second Amendment protects the rights of states.[10]  Mr. Ashcroft is hardly promoting his personal views.  He’s promoting the views of the Framers, and of the American legal system throughout most of American history.

The individual rights view is also in good modern company.  In 1986’s federal Firearms Owners’ Protection Act, Congress specifically reaffirmed “the right of the citizens to keep and bear arms.”[11]  In 1960, those noted conservatives (or is it “radicals”?) John F. Kennedy and Hubert H. Humphrey both asserted their support for the right of each citizen to keep and bear arms.[12]  Some leading liberal constitutional scholars today likewise take this view.

Nor has the Supreme Court held the contrary.[13]  The 1939 United States v. Miller decision did say that the right extends only to arms that are related to the militia.  But it also specifically stressed that “militia” meant “all males physically capable of acting in concert for the common defense,” and that ordinarily “these men were expected to appear bearing arms supplied by themselves.”[14]

So the Ashcroft Justice Department may be going against the views of past Justice Departments, and of most federal courts of appeals, which have indeed endorsed the states’ rights view of the Second Amendment.  But it’s returning to a much broader consensus:  The view, adopted throughout most of the nation’s history, that the “right of the people to keep and bear arms” is as individual a right as “the right of the people to be secure . . . against unreasonable searches and seizures” or “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[15]

The right wouldn’t be absolute, just like other rights aren’t absolute.  Forty-four of the 50 states have right-to-bear arms provisions in their bills of rights, and the overwhelming majority are clearly individual rights.[16]  But state courts have nonetheless upheld many gun controls, such as bans on felons possessing guns, or restrictions on certain types of guns that are particularly likely to be used by criminals.

Nonetheless, the right would meaningfully protect private gun ownership.  The District of Columbia gun ban, for instance, which prohibits virtually all handguns, and requires even rifles and shotguns to be kept locked and unloaded, may well be struck down.[17]  This law was upheld under a states’ right theory by the D.C. Court of Appeals in the late 1980s.[18]  But a new challenge in federal court might lead to the law’s invalidation.

And the right, if firmly accepted by the courts, may actually facilitate the enactment of modest gun controls.  Today, many proposals, such as gun registration, are opposed largely because of a quite reasonable fear that they’ll lead to D.C.-like gun prohibition.

But if the courts can make clear that the Constitution takes such a prohibition off the table, this slippery slope concern may become less serious.  And some people may thus become willing to support compromise legislation, precisely because the core of the right will be protected -- just as the radical and alarming Bill of Rights commands.

[1] See http://latimes.com/news/nationworld/nation/la-050802guns.story (“scholars and gun-control advocates said they were alarmed because they believe the ‘radical’ shift in position threatens to undermine a wide range of gun laws already on the books”); Violence Policy Center, VPC: Ashcroft Decision Cloaked in Secrecy, U.S. Newswire, Aug. 2, 2001 (“the VPC[‘s] . . . ‘Shot Full of Holes: Deconstructing John Ashcroft’s Second Amendment’ . . . exposes Ashcroft’s Second  Amendment letter as a shoddy piece of legal and historical research that fails to support its  radical ‘individual rights’ conclusion”).

[2] See, e.g., Josh Sugarmann (executive director of the Violence Policy Center), Dispense With the Half Steps and Ban Killing Machines, Houston Chronicle, Nov. 5, 1999, at 45 (“A gun-control movement worthy of the name would insist that President Clinton move beyond his proposals for controls . . . and immediately call on Congress to pass far-reaching industry regulation like the Firearms Safety and Consumer Protection Act . . . [which] would give the Treasury Department health and safety authority over the gun industry, and any rational regulator with that authority would ban handguns.”); Violence Policy Center, Ban Handguns Now, http://www.banhandgunsnow.org .

[3] Linda Greenhouse, U.S., in a Shift, Tells Justices Citizens Have a Right to Guns, N.Y. Times, May 8, 2002.

[4] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC8 .

[5] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC9 .

[6] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC6 .

[7] See http://www.law.ucla.edu/faculty/volokh/beararms/testimon.htm, citing the state calls for proposed constitutional amendments, as well as right to bear arms provisions in state constitutions.

[8] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC33 .

[9] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC34 .

[10] See David Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, available at http://davekopel.com/2A/LawRev/19thcentury.htm .

[11] See Pub. L. 99-308 sec. 1(b), printed at 18 U.S.C. § 921 Statutory Note (“The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies; and additional legislation is required to reaffirm the intent of the Congress . . . that ‘it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.’”).

[12] Senator Hubert H. Humphrey, Know Your Lawmakers, Guns, Feb. 1960, at 4 (“Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to bear arms.”); John F. Kennedy, Know Your Lawmakers, Guns, April 1960, at 4 (discussing “the right of each citizen ‘to keep and bear arms’”).

[13] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC10; see also David Kopel, The Supreme Court’s Thirty-five Other Second Amendment Cases, 18 St. Louis University Public Law Review 99 (1999), available at http://davekopel.com/2A/LawRev/35FinalPartOne.htm .

[14] http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC11 .

[15] First and Fourth Amendments.

[16] http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm (sorted by state); http://www.law.ucla.edu/faculty/volokh/beararms/statedat.htm (sorted by date).

[17] D.C. Code §§ 6-2311, 6-2312, 6-2372.

[18] Sandidge v. United States, 520 A.2d 1057 (1987).