More on the “The” and Pre-existing Rights

The District of Columbia Court of Appeals said that the word “the” in “the right to keep and bear arms” shows that the Second Amendment protected a pre-existing right. All nine Justices agreed. The majority opinion makes exactly this point. (“The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” 128 S.Ct at 2797-98.) The Stevens dissent agrees. (“And the Court’s emphatic reliance on the claim ‘that the Second Amendment … codified a pre-existing right,’ ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.” Id. at 2831.) All nine Justices also agree that there was a pre-existing common law right to personal gun ownership. The dispute between the majority and the dissent is whether there was also a pre-existing militia right, which could have been the antecedent for “the” right to keep and bear arms.

Is is possible to use the word “a” to refer to a pre-existing right? Yes, but such a use does not, in itself, show that the writer considers the right to be pre-existing. So when the writers of the 1816 Indiana Constitution used the phrase “a right to keep and bear arms,” or when I use the same phrase, the reader cannot tell from that phrase and that phrase alone that right is pre-existing. The Indiana drafters very likely did consider the right to be pre-existing, but to prove that point, you have to look at sources beyond the actual constitutional text.

Henigan cites to two state constitutions which he says show that there was a pre-existing militia right: First, the 1776 North Carolina Declaration of Rights “That the people have a right to bear arms, for the defence of the State…”, and the 1780 Massachusetts Constitution: “The people have a right to keep and bear arms for the common defence…”

To state the obvious, both of these provisions refer to “a” right to arms. You can’t tell from the text alone whether these provisions refer to a pre-existing right.

Dennis is right that I do see these provisions as including gun ownership for “defense of hearth and home.” See, e.g., State v. Newsom, 27 N.C. (5 Ired.) 250, 251 (1844)(provision protects right to arms for personal defense, but does not protect gun ownership by free blacks, who were supposedly not part of the social compact). But whatever the scope of the Massachusetts and North Carolina provisions protecting “a right” to arms, the text of those provisions does not prove that the right is pre-existing. It might be, but you can’t prove it was pre-existing just by looking at the text.

So in short, we have a wealth of common law and English sources showing that there is a pre-existing natural right to have arms for personal defense. We have zero sources from before 1789 showing a pre-existing right to be in the militia, or to have arms only for use in the militia. If there were such sources, Justice Stevens could have cited one in support of his bare assertion about a pre-existent militia right.

Because all nine Justices agree that the Second Amendment’s particular language points to a pre-existing right, the failure of Justice Stevens, and his supporters, to point to a source proving a pre-existing militia-only right is a fatal flaw in his theory of the Second Amendment as a militia-only right.

Also from this issue

Lead Essay

  • Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.