By Dave Kopel
America's 1st Freedom, March 2011. More by Kopel on James Madison and the right to arms.
Will the Second Amendment still protect your rights a few years from now?
The answer is: perhaps not, for it only survives today by a single vote in a sharply divided U.S. Supreme Court.
In December, Supreme Court Justice Stephen Breyer announced on national television his continuing opposition to a real Second Amendment right. If President Barack Obama has the opportunity to appoint one more Supreme Court justice--and he almost certainly will have the opportunity if he is re-elected in 2012--any meaningful Second Amendment right will be erased from the Constitution.
Having opposed the Heller ruling in 2008, Breyer took the first opportunity available to vote that it be overruled. He did so in a dissenting opinion in McDonald v. Chicago, which was decided in June 2010.That vote to overturn Heller was joined by President Obama's first Supreme Court appointee, Justice Sonia Sotomayor, and also by Justice Ruth Bader Ginsburg. In a December 2009 speech to the Harvard Club in Washington, D.C, Ginsburg suggested that she hopes one day the Heller dissenters will become the majority, and Heller will be no more.
With anti-gun Justice Elena Kagan replacing the retiring Justice John Paul Stevens, the anti-Second Amendment bloc on the Supreme Court is just one vote away from victory.
Breyer, meanwhile, is intensifying his public relations campaign against the Second Amendment. On Dec. 12, 2010, Breyer appeared on "Fox News Sunday" to promote his new book, "Making Our Democracy Work." (The interview video is available at http://video.foxnews.com/v/4456313/justice-stephen-breyer-on-fns.)
Breyer told host Chris Wallace that James Madison, the author of the Second Amendment, had no interest in protecting the right of self-defense. Instead, Breyer said, Madison had been fighting to get the Constitution ratified by the state conventions, and he was "worried about opponents who would think Congress would call up state militias and nationalize them." So Madison proposed the Second Amendment because he was working on the principle, "I've got to get this document ratified."
"If you're interested in history, and in this one history was important, then I think you do have to pay attention to the story," Breyer continued. "If that was his motive historically, the [Heller] dissenters were right. And I think more of the historians were with us."
Breyer is correct that there were more than a dozen American historians who filed "friend of the court" briefs in District of Columbia v. Heller and in McDonald v. Chicago, opposing the right to own firearms for self-defense. The problem with their contention is that the historical record directly contradicts those claims. For a good summary of the numerous errors by the history professors on whom Breyer and the other anti-Heller justices relied, see David Young's excellent article "Why D.C.'s Gun Law Is Unconstitutional" at http://hnn.us/articles/47238.html.
During the state ratification debates on the proposed Constitution, there were, indeed, many concerns raised about the militia powers that would be granted to the new government. Article I, section 8 of the Constitution gives Congress the power to call the militia into federal service in order to "execute the laws of the union, suppress insurrections and repel invasions." Further, Congress has the power to provide for arming, training and disciplining the militia.
Many people worried that Congress might abuse its militia powers by calling the state militias into federal service, marching them from state to state and thus depriving the states of the protection of the militias. Or, Congress might destroy the militias by neglect or by design--such as by enrolling only a tiny portion of the people into a "select militia" that would be loyal only to the national government, but that would not defend the states.
But here, the argument of Breyer, et al. collapses. To begin with, when Madison introduced the Second Amendment on June 8, 1789, he could not possibly have been thinking, "I've got to get this document ratified." The Constitution had already been ratified by 11 states, two more than the nine required for ratification. Pursuant to the ratified Constitution, George Washington had been elected president of the United States.
More importantly, Breyer is conflating the Second Amendment--which Congress approved--with another proposed amendment that Congress rejected. Rep. Roger Sherman of Rhode Island introduced an amendment to address concerns about federal militia powers. The Sherman proposal read:
"The militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military Service shall not be required of persons religiously scrupulous of bearing arms."
If the object were to protect the state militias from the misuse of federal power, Sherman's amendment showed the way. The U.S. House committee that was drafting the Bill of Rights, however, did not support that amendment.
Instead, the committee favored a proposal from James Madison. Unlike the Sherman amendment, the Madison amendment said nothing about state control of the militias. Rather, the amendment protects the right of "the people."
Madison's original structure of the Bill of Rights did not place the amendments together at the end of the text of the Constitution (the way they were ultimately organized). Rather, he proposed interpolating each amendment into the main text of the Constitution, following the provision to which it pertained. If he had intended the Second Amendment to be a limit on the power of the federal government to interfere with state militias, he would have put it after Article 1, section 8, which grants Congress militia powers. Instead, Madison put the right to bear arms amendment, along with the freedom of speech amendment, in Article I, section 9--the section that guaranteed essential individual rights, such as habeas corpus.
Additionally, in ratifying the Bill of Rights, the Senate rejected a change in the Second Amendment that would have limited it to bearing arms "for the common defense."
In a New York Times op-ed (Dec. 21, 2010), historian Pauline Maier rushed to Breyer's defense. Maier is a respected historian of late 18th century America, but like most of the other historians whom Breyer tallies as supporting his viewpoint, has no particular expertise in Second Amendment history. Indeed, her new book "Ratification," contains nothing about the Second Amendment except to note where Madison wanted to put it.
Yet Maier's New York Times column asserts that it is "abuse of history" to justify Heller "by citing Madison and the other founders and framers."
Another historian in the Breyer camp, Stanford's Jack Rakove, has studied Second Amendment history. Yet he too--like all the opponents of the meaningful individual right--is unable to provide a coherent explanation of what the Second Amendment does mean if it does not mean a right of ordinary people to own and carry arms.
Shortly after Heller was decided, Rakove participated in a debate with UCLA Law Professor Eugene Volokh, who is among the large majority of Second Amendment law and history experts who believes that Heller was rightly decided. In the debate, Rakove had no shortage of platitudes, telling the audience that history is complex, as if that were some great secret that only history professors understand. But what Rakove could not do--and which he assiduously avoided doing despite repeated questioning from Volokh--was offer any theory of the legal meaning of the Second Amendment. (The debate is available at http://bloggingheads.tv/diavlogs/12562.)
Like the rest of the Constitution, the Second Amendment is not an obtuse and meaningless poem meant to be understood only by professors with a Ph.D. The Second Amendment, like everything else in the Constitution, is a straightforward legal rule that was written to be easily understood by ordinary people.
The anti-Heller justices have the same problem as Rakove. Justice Stevens' dissent in Heller, which Justices Breyer and Ginsburg joined, contains plenty of arguments about what the Second Amendment is not: It's not a right to have firearms for self-defense, say the justices. And there's a brief assertion that the Second Amendment is an individual right to have arms for militia purposes only. But the dissenters made no attempt to reconcile their supposed individual militia right with the Stevens-Breyer-Ginsburg claim that the Second Amendment is no impediment to a complete gun ban.
Besides relying on a mistaken history of the Second Amendment, Breyer makes further arguments against Second Amendment rights, both on television and in his new book. He points to "changing circumstances" such as the differences between "18th century, primarily rural America, where frontier life demanded guns, and the present, primarily urban America, where gun possession presents a greater risk of taking innocent lives."
Yet this is the same kind of specious reasoning that can be used against any constitutional right. The First Amendment, it could be argued, is much more dangerous these days. In 1791, if a person abused First Amendment rights by writing damaging lies about someone, the few thousand subscribers to whatever newspaper published the libels might be the only ones to read the lies. Now, thanks to the Internet, a reputation-destroying lie can literally travel around the world to millions of readers in a few seconds. Yet we don't use the greater danger of the modern press as a reason to obliterate or narrow First Amendment rights.
Besides, if the original First or Second Amendments are too dangerous for modern conditions, the proper remedy is to propose a modifying or repealing amendment to the Constitution, not for judges to arrogate for themselves the power of repealing a part of the Constitution. Article VI of the Constitution gives amending power to Congress and the states, not to the Supreme Court.
Deriding the Heller majority's focus on "history," Breyer argues that judges should instead decide cases based on "values." It's fine to consider what the Founders valued, but the point of having a written constitution is to protect some things that the Founders valued especially highly--such as freedom of the press and the Right to Keep and Bear Arms--from transient changes in the "values" of judges or legislators.
Further, according to Breyer, having a meaningful Second Amendment would be too difficult: "We're acting as judges. If we're going to decide everything on the basis of history--by the way, what is the scope of the Right to Keep and Bear Arms? Machine guns? Torpedoes? Handguns?"
Well, that's no more difficult than what judges do all the time with other rights. As Breyer details in his book, one recent Supreme Court case decided that the government could not use remote surveillance (thermal imaging) to pry into the privacy of a home unless the government secured a warrant from a judge. Similarly, courts frequently use the First Amendment to make decisions regarding technologies that were unknown in 1791--such as movies, sound tracks or Facebook.
One proper function of judges is to create legal doctrine that supplies detail to the broad terms of the Constitution. For example, if several businesses discuss plans to restrain trade, is their speech protected by the "freedom of speech"? As elaborated by Supreme Court opinions, the answer is "generally not"--but such speech is constitutionally protected if the businesses are advocating for the government to restrain trade on their behalf.
Throughout the 20th century, courts built extensive doctrines to answer questions about the First Amendment, and they can do the same for the Second.
Part of Breyer's version of "values" judging is that the judge writes out his own systematic analysis of the importance of various interests on both sides of the case. In Breyer's calculus, the interests of gun owners count for little. He told Fox News' Wallace: "Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
Well, to start with, the ability to travel to another state and rent a gun is not really the same as the right to "keep" arms, which is a right of ownership. Merely being able to rent a gun doesn't allow much opportunity for a person to learn how to properly clean or disassemble it, practice dry firing at home or engage in other responsible practices of the right to keep arms.
In his book, Breyer does admit that a handgun ban would substantially harm a right of self-defense. Yet even this can be infringed, he says, because long guns can be used for home defense (albeit, he admits, not as well as handguns). As he contends, "changes in the nature of society, the development of the urban police force, the nature of modern urban crime, the movement of population away from the frontier, with frontier life's particular dangers and risks, all have made gun possession less important in terms of the amendment's objectives--even if those objectives include the value of personal safety."
So the fact that the District of Columbia has a historically ineffective police force, run by one of the most expensive and incompetent municipal governments in America, and also has thousands of ruthless, predatory felons willing to murder people just for their sneakers--these modern changes are supposed to prove that defensive gun ownership is "less important" than before.
Even if the District's handgun ban failed to improve public safety, Breyer writes, it might lead other jurisdictions to adopt handgun bans, and perhaps pervasive handgun bans would work.
Most importantly, Breyer writes, "The Court should accept the legislature's judgment about gun possession and saving lives--as long as that judgment is reasonable." Yet an essential purpose of a written constitution--as the Heller majority pointed out--is to put some actions beyond the power of the legislature.
Breyer is not the first Supreme Court justice to create theories about why the courts should stand aside when city councils or legislatures infringe on portions of the Constitution that the justice personally dislikes. Indeed, he holds the seat once occupied by Justice Nathan Clifford, who in the 1873 Slaughter-House Cases provided the deciding vote to nullify a crucial part of the 14th Amendment.
With one more Supreme Court appointment by President Obama, Breyer could have the only other vote he needs to toss the Second Amendment into the dustbin of history.