The Commonplace Second Amendment
Prof. Eugene Volokh, UCLA Law School *
(73 NYU L. Rev. 793 (1998))
The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
Introduction
"The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms." 1 This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions -- perhaps to the point of reading it as having virtually no effect on government action. 2
My modest discovery 3 is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island's 1842 constitution, its first, provides
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 4
Compare this to the Second Amendment's
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. 5
The 1784 New Hampshire Constitution says
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 6
The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says
The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. 7
I list dozens more such provisions in the Appendix.
These provisions, I believe, shed some light on the interpretation of the Second Amendment:
1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause. 8
4. They point to how the two clauses might be read together, without disregarding either...
law.ucla.edu
Also see
In Webster’s English (The Founders’ Second Amendment)
albanysinsanity.wnymedia.net
THE UNABRIDGED SECOND AMENDMENT
by J. Neil Schulman
2asisters.org |
