Does the Second Amendment Issue Turn on the Word “The”?

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.”

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.