Commentary: Second Amendment

My two blogging inspirations are going at it again. Their informative and collegial exchanges (other greats here and here, respectively (look for links to feddie’s responses in the comments, I want to keep his anonymity somewhat secured)) have been sorely missed.

Obviously, my own view on the debate tends to align more with Feddie. I think, even with his update, Publius’s position that the language of the Second Amendment is indeterminate is a bit strained. Sure, if you pull at the language hard enough, you can find a collective meaning. Nonetheless, if one interpretation has stronger support, that is what should form the basis for judicial decisionmaking. In that vein, I thought I would share some relevant additional support concerning the original public meaning of the Second Amendment:

• ‘Militia’ – The Second Congress enacted the Militia Act of 1792, which required every able-bodied white man of a certain age to be enrolled in the militia and, after enrollment, to procure a gun. No further organizational standards were required. Thus, the militia was originally understood as including all white males – or a large segment population entitled to full legal rights at the time. Following this logic and applying more recent constitutional amendments, the militia should be understood as most adult citizens, without any additional organization. The current definition of Militia in the U.S. Code comports with this understanding, although it limits the female membership – 10 U.S.C. § 311.
• ‘Free State’ – In the current issue of Notre Dame Law Review, Eugene Volokh offers a thorough canvassing of Framing Era and pre-Framing writings in support of the conclusion that this phrase does not refer to the states of the Union, but rather the platonic ideal free country generally.
• Noscitur a sociis – The Second Amendment is just that – second (or fourth) in the middle of a catalogue of individual rights. In the D.C. Circuit opinion, Judge Silverman cogently notes the term ‘the people’ “is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.” *18. It would be exceedingly odd for a states’ rights amendment to be put in the midst of these individual guarantees.
• Early Commentaries – Four early commentaries on the Constitution both supported the individual rights interpretation. Feddie quotes Justice Story (1833), and additional commentaries in favor of an individual rights interpretation by St. George Tucker (1803) and Judge Cooley (1891) have been recognized as equally influential. William Rawle (1829) went even further, suggesting that that the Second Amendment was self-incorporating against the states by its own force: “The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

As a final, and general, response to Publius’s position regarding the role of policy generally, I will quote from Judge Kleinfeld’s excellent dissent in Silveira v. Lockyer (¶ 66):

“Constitutional interpretation cannot properly be based on whatever policy judgments we might make about the desirability of an armed populace, or the relevance of the Amendment's concern with citizen militias to modern times. Those who think the Second Amendment is a troublesome antique inappropriate to modern times can repeal it, as provided in Article V. That has been done before, as with legislative selection of Senators, and with Prohibition.”