What Did They Mean in Massachusetts?

In a previous post, Dennis criticized me for not “responding to the evidence, presented in my essay, of Justice Scalia’s manipulative and inconsistent textualism.” OK.

Much of the post does not merit a response because it does not advance the discussion, as it amounts to a précis of the arguments made by Justice Stevens in his dissent, which are addressed by Justice Scalia. Read the Scalia and Stevens opinions for yourself, and decide who has the better argument.

Both Scalia and Stevens agree that there are times when the context of “bear arms” shows that it means “carry guns while serving in the militia,” and other times when the context shows a broader meaning, as in “carrying guns while hunting.” Stevens and Henigan favor an interpretive rule by which “bear arms” must mean “militia-only” unless there is a specific invocation of non-militia use. As I said previously, both sides make a respectable argument for their position.

Henigan claims,

The closest contemporary usage of “the right of the people to keep and bear arms” was in the Massachusetts Bill of Rights, which provided that “the people have a right to keep and bear arms for the common defense,” in a provision that also warned of the dangers of peacetime armies and urged civilian control of the military. How do we know that “keep and bear arms” in that provision did not refer to individual self-defense? Because its context says otherwise. In a similar way, the meaning of the same phrase in the Second Amendment is affected by the context supplied by the militia language.

The problem with Dennis’s theory is that it is contrary to how Massachusetts courts read the language.

In Commonwealth v. Blanding (1825) Massachusetts’s Chief Justice Parker explained,

The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.

The explanation only makes sense if individuals have a general right to firearms for all purposes, rather than the right to have firearms solely for militia service.

In the 1896 case of Commonwealth v. Murphy, the Massachusetts Supreme Judicial Court upheld a ban on unlicensed mass armed parades in public; the defendant claimed that the ban violated the state’s right to arms.

The court disagreed, and explained that “The protection of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legislature may regulate and limit the mode of carrying arms.” The Court then supplied a string cite to cases from Tennessee, Texas, Alabama, Arkansas, Indiana, and Missouri (plus one contrary case from Kentucky). The “similar constitutional provision” in every one of these cases was a state right to arms clause which indisputably protected the right of everyone (not just militiamen) to have firearms in their home for self-defense and other purposes.

In 1976, the Massachusetts court rejected a criminal’s challenge to the state law restricting the possession of sawed-off shotguns. The court declared that the state constitutional arms right was only for militiamen, and that it no longer existed for any practical purpose, since the National Guard now had its own guns. The decision did acknowledge the earlier view might have been different:

that there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system.

Justice Breyer, too, recognized that the original view of the Massachusetts Constitution appears to have been a general (not militia-only) right to arms:

Samuel Adams, who lived in Boston, advocated a constitutional amend­ment that would have precluded the Constitution from ever being “construed” to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection.

Language nearly identical to the Massachusetts provision (“common defence,” with no explicit mention of any other purpose) appears in the state constitutions of Arkansas, Florida, South Carolina, and Tennessee — and has been interpreted in all those states to include the right of individuals who are not in the militia to have guns in their home for personal defense. (A contrary 1986 decision Maine was quickly overturned by the voters with a 1987 constitutional amendment.)

One justification for recognizing individual home protection as guaranteed by the “common defense” language is that families which protect themselves by thwarting or deterring violent criminals are contributing to the common defense of society.

Henigan may argue that the 1976 Massachusetts court and the 1986 Maine court got it right, and all the other courts were wrong. But the very fact that so many courts — and especially the courts closest in time to ratification of the state constitutions — disagree with Henigan’s interpretation shows the error of his claim that the Massachusetts right, and therefore the Second Amendment, have a clear “context” which proves that they were never intended to protect the right to possess arms for home defense.

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.