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.
The provisions also suggest two things about interpretation more generally. First, they remind us that the U.S. Constitution is just one of the at least fifty-one American constitutions in force today, and one of the dozens of constitutions that existed during the Framing era. 9 The legal academy's understandable focus on federal matters can blind us to some important details.
Second, these provisions help show the value of testing interpretive proposals against a politically mixed range of texts. On a topic as incendiary as gun control, it's obviously tempting for people to reach an interpretation based largely on their policy desires. If we want to be honest interpreters, a broad set of test cases for our interpretive method is a good tool for checking our political biases...
...
III. A Right Broader and Narrower Than Its Justification
Some argue the justification clause should be read as a condition on the operative clause: The right to keep and bear arms is protected only when it contributes to a well-regulated militia, or only when the well-regulated militia is necessary to the security of a free State. Thus, one commentator says, because "the Framers included a preamble to the Second Amendment . . . t is at least arguable that the only 'gun rights' protected by the Second Amendment are those that in fact support 'the security of a free State´ -- and that might mean none at all." 27
Again, this seems inconsistent with the text, which contains no "only when" clause. What's more, the text itself suggests that the operative clause is sometimes broader and sometimes narrower than its justification. The underinclusiveness of the operative clause is uncontroversial: The government is entitled to act in ways that are at odds with the Amendment's justification, so long as it doesn't deprive the people of the right to keep and bear arms. Congress has no obligation, for instance, to properly train the militia, or to demand that it be armed. 28 Congress may even take steps that might undercut the value of a well-regulated militia to the security of a free state, for instance by creating a standing army. 29
The overinclusiveness of the operative clause is likewise evident from the text. The operative clause says the right to keep and bear arms belongs to "the people." Given that "the right of the people" is likewise used to describe the right to petition the government, the right to be free from unreasonable searches and seizures, and the rights to keep and bear arms recognized in various contemporaneous state constitutions -- all individual rights that belong to each person, not just to members of the militia -- "the people" seems to refer to people generally. 30 The justification clause, though, refers to the militia, which has always generally included pretty much all able-bodied men from age eighteen to forty-five 31 rather than all people. 32 People who aren't in the militia, such as men over forty-five, 33 or those few whose professions have generally exempted them from militia service -- such as ship pilots or post office employees 34 -- don't seem to further the purpose set forth in the justification clause, but their rights are still covered by the text of the operative clause.
Thinking about the other constitutional provisions further reminds us that we shouldn't expect an operative provision to fit perfectly with its justification. Let's return for a moment to the New Hampshire Venue Article:
In criminal prosecutions, the trial of the facts near 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 . . . . 35
The operative clause doesn't serve the Article's purposes in every case: Some transfers from one county to another might actually bring the trial closer to where the crime took place. Likewise, the trial of facts in the vicinity where they happen isn't always essential to the security of life, liberty, and estate -- for instance, if the defendant and the witnesses are unknown to the jurors, the defendant lives as far from the proposed alternate venue as from the county where the crime was committed, and the proposed venue and the county where the crime was committed are demographically similar. Still, the provision means what it says: The trial must be in the county in which the offense took place. 36 The provision is quite explicit about what is to be done, regardless of whether the particular application of the provision would serve its broader purpose.
Likewise, consider the New Hampshire Ex Post Facto Article:
Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences. 37
One can probably imagine situations where retrospective laws, especially civil ones, are not in fact injurious, oppressive, and unjust (or at least not highly so). 38 Even those who believe that all ex post facto laws are highly unjust would probably concede that some reasonable judges could take a different view. And yet the provision bans all ex post facto laws, not only the highly unjust ones.
These provisions, like constitutional rights provisions more generally, don't just announce a purpose and ask courts to do whatever the judges think fits the purpose. Their enactors could have done so -- they could have broadly required "the trial of the facts near where they happen," or required "the trial of facts in a way conducive to the security of the life, liberty, and estate of the citizen," or banned "highly injurious, oppressive and unjust" laws generally. But they instead chose to impose much more specific constraints, constraints that are both over- and underinclusive.
Those who enacted the Bills of Rights apparently didn't trust courts to decide for themselves what's "conducive to the security of the citizen" or what's "highly injurious, oppressive and unjust," or even what's "near." They meant to constrain courts, not to leave them with complete discretion to do justice any way they think best. The enactors had broad ends in mind, but they chose to serve those ends by enacting into law some particular means. 39
So it is with the Second Amendment. The Framers may have intended the right to keep and bear arms as a means towards the end of maintaining a well-regulated militia -- a well-trained armed citizenry 40 -- which in turn would have been a means towards the end of ensuring the security of a free state. But they didn't merely say that "a well-regulated Militia is necessary to the security of a free State" 41 (as some state constitutions said), or "Congress shall ensure that the Militia is well-regulated," or even "Congress shall make no law interfering with the security of a free State." Rather, they sought to further their purposes through a very specific means. 42
Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn't further the Amendment's purposes. As the other state constitutional provisions show, there should be nothing surprising in this. When you mean to check government authority, 43 you do this by imposing specific commands on the government, even if they sometimes don't match your purposes perfectly, rather than by letting the government decide how it thinks the purposes can best be served...
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