I look forward to responding to Bob Levy in a subsequent posting. For now, I’ll address David Kopel’s claim that the knockout blow against the “militia purpose” view of the Second Amendment is the appearance of the article “the,” as in, “the right of the people to keep and bear Arms.”
Instead of responding to the evidence, presented in my essay, of Justice Scalia’s manipulative and inconsistent textualism, Kopel claims the “fight over original meaning has to come to an end” over the use, in the Second Amendment, of the article “the,” instead of “a” in the phrase “the right of the people to keep and bear Arms.” The use of “the,” according to Kopel, establishes that the right was preexisting and, since no militia-related right could be preexisting, the right must be to arms for individual self-defense. In effect, he is arguing that the word “the” trumps the importance of the entire phrase “A well regulated Militia, being necessary to the security of a free State.”
James Lindgren, in a posting on the Volokh Conspiracy, has helpfully pointed out that Kopel’s essay is unfaithful to his own argument, since he uses “a” to refer to what he believes to be a preexisting right. Kopel writes: “If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect a personal right to arms for self-defense.” Aside from his own inconsistency, Kopel’s argument falls for two additional reasons.
First, state constitutional “right to bear arms” provisions predating, and post-dating, the Second Amendment, which Scalia (and presumably Kopel) believe to recognize an individual right apart from militia service, refer to “a right to bear arms.” For example, the Pennsylvania Declaration of Rights, which predated the Second Amendment, provided, “That the people have a right to bear arms for the defence of themselves and the state … .” The Indiana Constitution, adopted in 1816, also used the phrase “a right to bear arms” in the same context. I assume that Kopel would assert that these provisions guaranteed preexisting rights as well. If so, they demonstrate that nothing whatever turns on the use of the article “the” in the Second Amendment. Other examples can be found in the majority opinion, at footnote 8. They show that the Framers of various state “right to bear arms” provisions were quite indifferent as between “the right” and “a right.”
Second, Kopel’s assumption that there was no militia-related right preexisting the Second Amendment is demonstrably wrong. Consider the Massachusetts Constitution of 1780, quoted in my essay, but ignored by Kopel: “The people have a right to keep and bear arms for the common defence … .” Or the North Carolina Declaration of Rights of 1776: “That the people have a right to bear arms, for the defence of the State … .” I suppose Kopel could respond by claiming that these provisions, in defiance of their text, really concerned “defense of hearth and home,” but then they would stand as simply additional examples showing that the distinction between “the” and “a” in the Second Amendment means nothing.
It is hardly surprising that the majority opinion in Heller wisely avoided making Kopel’s “argument about articles.”