By Dave Kopel, Dr. Paul Gallant, & Dr. Joanne Eisen of the Independence Institute
10/24/00 5:05 p.m., National Review Online. More by Kopel on the gun issue in the 2000 election.
Today, like every day this election season, union shop stewards all over the country told their rank and file that Al Gore is a stronger defender of Second Amendment rights than is George Bush. A lie? That all depends on what the definition of "Al Gore" is.
If by "Al Gore" you mean the Tennessee representative and first-term senator, the shop stewards are absolutely right. Before the 1988 run for the presidency, Gore had an impeccable pro-NRA voting record. But after Gore decided that he could never become president without winning the New York primary, his voting record in the Senate turned harshly antigun. During the Democratic primaries in 2000, he even claimed that he went into politics so he could fight for gun control—but given his perfect NRA voting record for his first decade and half in politics, he didn't do a very good job.
Perhaps the meaning of "Al Gore" is "the guy who's currently the Democratic presidential nominee and trying to win pro-hunting states." That Al Gore insists that he strongly supports the Second Amendment.
But what this month's Al Gore claims is entirely different from what Vice President Gore and the Clinton/Gore administration have done for the last eight years. A case in point is the Clinton/Gore administration's continued insistence that the Second Amendment poses no legal obstacle to the federal government confiscating every privately owned firearm in the United States.
Arguing before the Fifth Circuit Court of Appeals this June, in the case of United States v. Emerson, the assistant United States attorney said exactly that, to an incredulous three-judge court.
Here's the exchange:
Chief Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"
AUSA (attorney for the DOJ): "Yes"
Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"
Although the AUSA was simply repeating a position which the Clinton/Gore/Reno Department of Justice has supported since January 1993, the lawyer's assertion attracted an unusual amount of notice, because the Emerson case was so closely watched by the media and by gun rights activists.
Accordingly, the Clinton/Gore DOJ issued a statement explaining what it believes to be the legal basis for its position. The DOJ position letter is revealing for two distinct reasons:
First, it underscores the absurdity of Al Gore claiming to support the Second Amendment rights of ordinary voters.
Second, the DOJ letter shows the emptiness of the claim that the Second Amendment does not support the right of law-abiding Americans to possess firearms.
Let's take a close look at the DOJ letter, to dissect its numerous errors of law.
U. S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
August 22, 2000
Dear Mr. (Name Deleted):
Thank you for your letter dated August 11, 2000, in which you question certain statements you understand to have been made by an attorney for the United States during oral argument before the Fifth Circuit in United States v. Emerson. Your letter states that the attorney indicated that the United States believes "that it could 'take guns away from the public,' and 'restrict ownership of rifles, pistols and shotguns from all people.'" You ask whether the response of the attorney for the United States accurately reflects the position of the Department of Justice and whether it is indeed the government's position "that the Second Amendment of the Constitution does not extend to the people as an individual right."
I was not present at the oral argument you reference, and I have been informed that the court of appeals will not make the transcript or tape of the argument available to the public (or to the Department of Justice). I am informed, however, that counsel for the United States in United States v. Emerson, Assistant United States Attorney William Mateja, did indeed take the position that the Second Amendment does not extend an individual right to keep and bear arms.
That position is consistent with the view of the Amendment taken both by the federal appellate courts and successive Administrations.
In other words, the AUSA was speaking the official DOJ position when he said that the Second Amendment is no impediment to complete gun confiscation.
More specifically, the Supreme Court and eight United States Courts of Appeals have considered the scope of the Second Amendment and have uniformly rejected arguments that it extends firearms rights to individuals independent of the collective need to ensure a well-regulated militia. See United States v. Miller, 307 U.S. 174 (1939) (the "obvious purpose" of the Second Amendment was to effectuate Congress's power to "call forth the Militia to execute the Laws of the Union," not to provide an individual right to bear arms contrary to federal law"); Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942) ("The right to keep and bear arms is not a right conferred upon the people by the federal constitution."); Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) ("It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution."); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Warin, 530 F.2d 103, 106-07 (6th Cir. 1976) ("We conclude that the defendant has no private right to keep and bear arms under the Second Amendment."); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) ("There can be no serious claim to any express constitutional right of an individual to possess a firearm."); Ouilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) ("The right to keep and bear handguns is not guaranteed by the second amendment."); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) ("The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has some relationship to the preservation or efficiency of regulated militia, the Second Amendment does not guarantee the right to possess the weapon."); United States v. Tomlin, 454 F.2d 176 (9th Cir. 1972); United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975) ("There is no absolute constitutional right of an individual to possess a firearm.").
The Department of Justice does have a number federal appellate cases on its side — although some of these cases simply involve the rejection of frivolous claims by convicted felons that they have an "absolute" right to arms. But the Department of Justice is plainly wrong to claim that all the federal appeals courts support its position. Consider:
Thus, the Department of Justice cites the three-judge Fourth Circuit case from 1974, but omits the en banc Fourth Circuit case from 1997. The Department of Justice cites the Eighth Circuit case from 1992, but omits the Eighth Circuit case from July 2000.
More egregious, though, is the DOJ's claim about the Supreme Court. There are three dozen Supreme Court cases which mention or quote the Second Amendment, and the overwhelming weight of these cases is in favor of an individual right.
For example, in 1992's Planned Parenthood v. Casey, Justice O'Connor, writing the opinion of the Court, analyzed the meaning of "The full scope of the liberty guaranteed by the Due Process Clause" of the Fourteenth Amendment. She explained that this liberty "cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on."
Thus, "the right to keep and bear arms" is among the "specific guarantees elsewhere provided in the Constitution." Further, the right to arms is placed in the middle of a list of obviously individual rights: the protections against the taking of property, against unreasonable searches, and against infringements of speech, press, and religion.
In 1990 in United States v. Verdugo-Urquidez, Chief Justice Rehnquist's opinion for the Court observed that "the people" who are protected by the Second Amendment are the same as "the people" who are protected by the First, Fourth, and Ninth Amendments:
"[T]he people" seems to have been a term of art employed in select parts of the Constitution. The preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendment provide that certain rights and power are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law. . .abridging. . .the right of the people peaceably to assemble")(emphasis added); Art I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the Several States")(emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the People" protected by the Fourth Amendment, and by the First and Second Amendment, and to whom rights are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
The DOJ letter continues:
Thus, rather than holding that the Second Amendment protects individual firearms rights, these courts have uniformly held that it precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia.
But, of course, the courts have not "uniformly" held any such thing. Some lower federal courts have, while some have taken contrary positions. The Supreme Court's Miller decision does not support such an extreme reading. And the Supreme Court's most recent pronouncements on the Second Amendment are thoroughly inconsistent with the DOJ position.
The DOJ letter then attempts to bolster its legal position by pointing to statements made by DOJ lawyers in previous years. This is rather like an associate at Arnold & Porter trying to prove a legal point by citing memos written years ago by Mr. Arnold or Mr. Porter. This may work in-house, but it isn't terribly convincing to courts.
Moreover, it is notable what administrations these old statements come from. One is from the Nixon administration, by far the most anti-gun in U.S. history. Bill Clinton really does enjoy an occasional duck hunt, but Richard Nixon said that guns were "an abomination." Except for Waco, the Bureau of Alcohol, Tobacco and Firearms was far more abusive under the Nixon administration than under any subsequent administration. The other DOJ statement comes from one of Lyndon Johnson's attorneys general, testifying in support of a Democratic gun-control bill:
Similarly, almost three decades ago, the Department of Justice's Office of Legal Counsel explained:
The language of the Second Amendment, when it was first presented to the Congress, makes it quite clear that it was the right of the States to maintain a militia that was being preserved, not the rights of an individual to own a gun…[and] [there is no indication that Congress altered its purpose to protect state militias, not individual gun ownership [upon consideration of the Amendment] . . . . Courts…have viewed the Second Amendment as limited to the militia and have held that it does not create a personal right to own or use a gun . . . . In light of the constitutional history, it must be considered as settled that there is no personal constitutional right, under the Second Amendment, to own or to use a gun. Letter from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, to George Bush, Chairman, Republican National Committee (July 19, 1973) (citing, inter alia, Presser v. Illinois, 116 U.S. 252 (1886), and United States v. Miller, 307 U.S. 174 (1939)). See also, e.g., Federal Firearms Act, Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate 41 (1965) (Statement of Attorney General Katzenbach) ("With respect to the second amendment, the Supreme Court of the United States long ago made it clear that the amendment did not guarantee to any individuals the right to bear arms.").
Every claim made in the above paragraph is wrong. Let's start with "The language of the Second Amendment, when it was first presented to the Congress." Madison's original language for the Second Amendment was: "The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
As with the Fifth Amendment (covering, in the original, a ban on multiple punishments and trials, a ban on self-incrimination, a guarantee of due process, and a requirement of just compensation for the taking of property), Madison covered several topics in his proposed Second Amendment. That Congress took out the language about conscientious objectors serving in the militia does not, the DOJ admits, change the meaning of the rest of the Second Amendment.
Madison's proposal used exactly the same language — "right of the people" — to guarantee a personal right to arms as he did the right to assembly and the right to protection from unreasonable searches.
The invocation of the militia and the security of a free state was what UCLA law professor Eugene Volokh calls a " "purpose clause" — a common technique in constitutional drafting at the time, and for decades after. For example, the New Hampshire constitution declared: "Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time."
This provision makes all pensions of longer than one year at a time void — even if the state is no longer "a young one" and no longer in need of economy. Volokh supplies dozens of similar examples from other state constitutions. Thus, whatever one thinks about what a militia is and how it contributes to the security of a free state, the operative, main clause of the Second Amendment remains intact. Madison, after all, specified that "the right to keep and bear arms" belongs to the "the people," not only to "the militia."
Notably, 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 mainly a limit on the power of the federal government to interfere with state-government militias, he would have put it after Article 1, section 8, which granted Congress the power to call forth the militia to repel invasion, suppress insurrection, and enforce the laws; and to provide for organizing, arming, and disciplining the militia. 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 individual rights, such as habeas corpus).
Madison's notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the "omission of guards in favr. of rights & libertys." His amendments "relate 1st. to private rights." A Bill of Rights was "useful — not essential." There was a "fallacy on both sides — especy as to English Decln. of Rts." (The 1689 Declaration of Rights which had been adopted by Parliament in England.)
Like many other Americans, Madison believed the English Declaration was too narrow; it omitted certain rights and protected others too narrowly. In particular, there was "no freedom of press — Conscience." There was no prohibition on "Gl. Warrants" (general warrants) and no protection for "Habs. corpus."
Nor was there a guarantee of "jury in Civil Causes" or a ban on "criml. attainders." (Bills of Attainder.)
Lastly, the Declaration protected only "arms to Protestts." — apparently too narrow a slice of population for Madison — especially considering his hostility to religious discrimination. (The 1689 English Bill of Rights guaranteed "That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." Protestants comprised almost the entire population at the time.)
The 2000 DOJ letter cites the 1973 DOJ for the proposition that "Courts…have viewed the Second Amendment as limited to the militia and have held that it does not create a personal right to own or use a gun." This statement is not wrong just because of what courts in the 1990s have said. This statement has been wrong since the first days when courts ruled on the Second Amendment. For example, one of the first cases was the 1846 case Nunn v. State, in which the Georgia supreme court unanimously threw out a handgun ban, because it violated the Second Amendment. What did the Second Amendment comprise?
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
With the exception a single concurring opinion by one judge in Arkansas, every court and legal commentator who discussed the Second Amendment in the nineteenth century treated the Second Amendment as an individual right.
The 2000 DOJ letter also quotes the 1973 letter's citation of the 1886 Supreme Court case United States v. Presser. There, the Court held that the Second Amendment was a limit only on the federal government, not the states, and therefore did not prevent the state of Illinois from regulating armed parades in public. Presser is a reasonable (although rather old) case for gun-control advocates to cite for the theory that the Second Amendment does not limit state gun control. (Almost all states have their own state constitutional right to arms.) But there is nothing in Presser which claims that the Second Amendment right to arms belongs only to state governments, and not to the people.