Feature
July 24, 2000/Vol 5, Number 42
Taking the Second Amendment
Seriously
Finally, and for good reason, a gun control
statute has been struck down as
unconstitutional.
By Nelson Lund

Timothy Joe Emerson is a Texas physician who lawfully bought a pistol in
1997. About a year later, Emerson’s wife filed for divorce and sought a
temporary injunction containing 29 separate prohibitions, most of them
aimed at protecting Mrs. Emerson’s financial interests. The proposed order
also prohibited various sorts of interference with the couple’s child, and it
forbade Emerson to threaten or injure his wife or to communicate with her
in vulgar or indecent language.

At a hearing on whether to grant the injunction, the state divorce court
judge explored the financial circumstances of the couple and decided on
the amount of temporary child support Emerson should provide. In her
testimony, Mrs. Emerson reported that her husband had threatened her
new boyfriend but denied that Emerson had threatened her. The judge
issued the injunction, but he made no findings that Emerson was likely to
commit any of the 29 separate acts prohibited in the temporary restraining
order, many of which were not alluded to in any way during the hearing.

Nothing in the story so far is unusual. It is apparently routine for Texas
courts to issue such prophylactic restraining orders in divorce cases,
without evidence that the acts prohibited in those orders would otherwise
be likely to occur. The story became less commonplace when Mrs.
Emerson subsequently accused her husband of brandishing the pistol, and
federal prosecutors took up the case. A federal grand jury indicted
Emerson in December 1998 for violating an obscure portion of the 1994
Violent Crime Control Act, which is better known for its prohibition of
certain so-called assault weapons. The provision used against Emerson
appears on its face to impose a ban on firearms possession by any person
who is subject to a court order that prohibits him from using or threatening
physical violence against an “intimate partner” or that partner’s child.

This was too much for Judge Sam R. Cummings, a federal trial judge in
Texas, who last year declared the indictment unconstitutional. Cummings
reasoned that if the federal statute had been triggered by a court order
based on a finding of danger to Mrs. Emerson or her child, forbidding Mr.
Emerson to own a gun might be a reasonable regulation. But because the
prosecution was based on a boilerplate order that was unsupported by any
such finding, it violated Emerson’s Second Amendment right to keep and
bear arms.

Had this case concerned any other part of the Bill of Rights, Cummings’s
analysis would have bordered on the obvious. The law, for example,
forbids us to libel other people. But this doesn’t mean that anyone who has
been officially told to refrain from breaking the libel laws can also be told
to remain completely silent, or be barred from possessing a printing press.
If it did, a legislature could simply outlaw speech, or printing presses, on
the ground that this would help prevent libel. While this sort of sweeping
prior restraint might be very effective in preventing libel, it would violate the
First Amendment.

Judge Cummings thought that the same kind of analysis should apply to
Emerson’s case. The law forbids people to cause or threaten bodily injury
to others. But how can people be deprived of their right to possess arms
merely because they have been told to obey the law? If they could, it
would seem to follow that Congress could choose to promote obedience
to the laws against murder and assault by forbidding everyone to possess
weapons. And the Second Amendment would then mean only that the right
of the people to keep and bear arms shall not be infringed unless the
government decides to infringe it.

Despite the obvious logic in Cummings’s opinion, his decision has created a
stir, and rightly so. The federal courts had never before invalidated any gun
control statute for violating the Second Amendment. What’s more, almost
every court of appeals in the country has concluded that this part of the Bill
of Rights means nothing at all, or so close to nothing that it might as well
not exist.

Cummings’s decision, however, is not doomed to inevitable reversal.
Unlike most lower courts, the Supreme Court has never decided to boot
the Second Amendment out of the Constitution, and neither has the Fifth
U.S. Circuit Court of Appeals (which covers Judge Cummings’s northern
Texas jurisdiction). Those two courts have decided only a handful of
Second Amendment cases and always on narrow grounds. It is therefore
possible that the long pattern of judicial hostility to the Second Amendment
could soon be broken.

The Fifth Circuit heard oral arguments in the government’s appeal of
Cummings’s decision on June 13. The session featured a number of
humorous exchanges, including comments by the judges about their own
personal arsenals, and an embarrassing display of ignorance by the
government’s lawyer about the statutory definition of the term “militia.” But
the most promising aspect of the argument was how little interest the
judges showed in joining the many other courts that have treated the
Second Amendment as a kind of enemy alien within the Bill of Rights.

Though it is always dangerous to predict what courts will do on the basis
of judges’ questions at oral argument, the following possibilities seem most
likely. The court may simply avoid the Second Amendment issue by
holding that the 1994 Violent Crime provision exceeds congressional
authority under the Supreme Court’s recent federalism decisions. Another
way of avoiding serious Second Amendment questions would be to
dismiss the indictment of Emerson on the ground that the federal statute
includes an implied limitation to cases where there has been a judicial
finding of dangerousness to the “intimate partner” or child. But it is also
possible that the Fifth Circuit will conclude Cummings was right, and that
the statute violates the Second Amendment.

If the court goes down this last road, the Emerson case could be headed
for the Supreme Court. And whether in this case or some other, the
Supreme Court will eventually have to decide whether the Second
Amendment is going to remain in the Constitution. It is therefore worth
understanding why expunging it would require a level of sophistry and
willfulness on a par with such disastrous instances of high court usurpation
as Dred Scott and Roe v. Wade.

For much of the twentieth century, there were two schools of thought
about the meaning of the Second Amendment. Virtually the entire legal
establishment, from the professoriate to most appeals courts, asserted that
it protects only the right of state governments to maintain military
organizations like the National Guard. On the other hand, people who read
English in the normal way thought that it protects the right of individual
citizens to keep and bear arms.

If the framers of the Second Amendment had simply provided that “the
right of the people to keep and bear arms shall not be infringed,” even a
lawyer would have trouble denying that it creates an individual right like the
other “rights of the people” described in the Bill of Rights. But that’s not
what they did. Instead, they appended an explanatory introduction, so that
the constitutional text says: “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.”

The introductory phrase, however, does not change the meaning of the
operative clause, and the Second Amendment means exactly what it would
have meant had the preface been omitted. To see why that’s so, and also
why such an explanatory preface makes perfect sense, one needs to grasp
two interrelated arguments. The first is based on the text of the Second
Amendment and its relationship with other clauses in the Constitution. The
second focuses on the immediate political problem that the preface was
meant to address.

Let’s start with the text of the Second Amendment. The operative clause
protects a “right of the people,” which is exactly the same terminology used
in the First Amendment and the Fourth Amendment. Those two provisions
indubitably protect individual (not states’) rights, and so does the Second
Amendment.

What the introductory phrase tells us is that this individual right is
protected, at least in part, because doing so will foster a well-regulated
militia. Before asking how it can do that, it’s worth emphasizing what the
Second Amendment does not say.

It emphatically does not protect the right of the militia to keep and bear
arms. The people and the militia were and are two very different entities.
Nor does the Second Amendment say that the people’s right to arms is
sufficient to establish a well-regulated militia, or that a well-regulated
militia is sufficient for the security of a free state.

Nor does the Second Amendment say that the right of the people to keep
and bear arms is protected only to the extent that such a right fosters a
well-regulated militia or the security of a free state.

In order to see why the introductory phrase cannot be interpreted as
qualifying the right of the people to keep and bear arms, one need only
consider the Patent and Copyright Clause, which is the Constitution’s
nearest grammatical cousin to the Second Amendment. That clause gives
Congress the power “to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right to
their respective writings and discoveries.”

Nobody thinks the prefatory language limits the reach of the granted
power. It doesn’t mean Congress must stop granting copyrights to racists
or pornographers or Luddites, who are hardly promoting the progress of
science. And yet the grammatical case for this interpretation would be
much stronger than the legal establishment’s reading of the Second
Amendment’s militia phrase as a limitation on the right to arms. Moreover,
state constitutions from the founding period were littered with explanatory
prefaces like the one in the Second Amendment, which were never
construed to change the meaning of the operative clauses to which they
were appended.

How, then, can the individual right to keep and bear arms contribute to
fostering a well-regulated militia? To answer that question, we have to look
at the original Constitution, which allocates responsibility for governing the
militia. It tells us five things that are crucially important in understanding the
Second Amendment.

First, the militia is not the army. The Constitution has separate provisions
for each and it never confuses or blends the two.

Second, Congress is given almost plenary authority over the army and
the militia alike. The only powers reserved to the states are the rights to
appoint militia officers and to train the militia according to rules prescribed
by Congress.

Third, the Constitution nowhere defines the militia. There is abundant
historical evidence that the founding generation saw a fundamental
difference between armies (usually composed of professional soldiers) and
the militia (consisting of civilians temporarily summoned to meet public
emergencies). But there is also abundant evidence that the founding
generation was acutely aware the militia could be converted into the
functional equivalent of an army. There had been examples of this in
England, and we have an example today in the National Guard.

Fourth, the Constitution imposes no duties whatsoever on the federal
government, either with respect to armies or with respect to the militia.
Congress is not required to organize the militia in any particular way, or to
keep it well regulated, or indeed to do anything at all to secure its
existence.

Fifth, the Constitution expressly prohibits the states from keeping troops
without the consent of Congress.

Turning back to the Second Amendment with these facts in mind, it
becomes apparent why the Second Amendment cannot possibly have
been a states’ rights amendment?meant to constitutionalize a right of
states to keep up military organizations like the National Guard. That
theory implies that the Second Amendment silently repealed or amended
two separate provisions of the Constitution: the clause giving the federal
government virtually complete authority over the militia, and the clause
forbidding the states to keep troops without the consent of Congress.
These provisions have allowed the federal government essentially to
eliminate the state militias as independent military forces by turning them
into adjuncts of the federal army through the National Guard system.
Under the states’ rights theory of the Second Amendment, this takeover of
the National Guard would represent an unconstitutional usurpation of state
power by Washington.

But of course the Second Amendment is not about states’ rights, and the
relationship between its introductory phrase and its operative clause turns
out to be deceptively simple. A well-regulated militia is not one that is
heavily regulated, but rather one that is not inappropriately regulated.
Recall that the original Constitution gives Congress almost unlimited
authority to regulate the militia. As the operative clause of the Second
Amendment makes perfectly clear, its purpose is simply to forbid one kind
of inappropriate regulation (among the infinite possible regulations) that
Congress might be tempted to enact. What is that one kind of
inappropriate regulation? Disarming the citizenry from among whom any
true militia must be constituted.

Congress is permitted to do many things that harm the militia, and to omit
many things that are necessary for a well-regulated militia. Congress may
pervert the militia into the functional equivalent of an army, or even deprive
it completely of any meaningful existence. A lot of those things have in fact
been done, and many members of the founding generation would have
strongly disapproved. But the original Constitution allowed it, and the
Second Amendment did not purport to interfere with congressional latitude
to regulate the militia. The one and only thing the Second Amendment does
is expressly forbid a particular, and particularly extravagant, extension of
Congress’s authority over the militia. Whatever the federal government
does or fails to do about the militia, the Second Amendment forbids it from
disarming citizens under the pretense of regulating the militia.

The Second Amendment was a response to a more specific and difficult
political problem than most other provisions in the Bill of Rights. Because
of historical memories going back to the period before the Glorious
Revolution, and because of actual memories of abuses by British troops in
the colonies, the founding generation was marked by a strong and
widespread aversion to peacetime standing armies. The militia system was
treasured by many people because the existence of a well-regulated militia,
composed of civilians readily available for emergency military service,
tended to deprive the government of an excuse for maintaining standing
armies.

Not everyone shared this sentiment. Alexander Hamilton, for one,
complained that the militia system violated the economic principle of
division of labor. More important, even those who treasured the militia
recognized that it was fragile. And the reason it was fragile was the same
reason that made Hamilton think it was stupid: Citizens were always going
to resist unpaid military training, and governments were always going to be
strongly tempted to acquire more professional (and therefore more efficient
and tractable) forces.

This led to a dilemma at the Constitutional Convention. Experience during
the Revolutionary War had demonstrated that militia forces could not be
relied on for national defense. The decision was therefore made to give the
federal government almost unfettered authority to establish armies,
including peacetime standing armies. But that decision created a threat to
liberty, especially in light of the fact that the Convention also decided to
forbid the states from establishing armies of their own without the consent
of Congress.

One solution might have been to require Congress to establish and maintain
a well-disciplined militia, but it was impossible for the Constitution to define
a well-regulated or well-disciplined militia with the requisite precision and
detail. Another solution might have been to give the states control over the
militia and forbid Congress from interfering. The Anti-Federalists favored
this solution, but it was also unworkable. Collective action and
coordination problems would have resulted in an absence of uniformity in
training, equipment, and command; no really effective fighting force could
have been created.

The conundrum could not in fact be solved, and the Convention did not
purport to solve it. Neither does the Second Amendment. What the
Second Amendment does is ameliorate the problem slightly. Faced with a
choice between a standing army and a well-regulated militia, the federal
government might well prefer to establish a standing army and allow the
militia to fall into desuetude. But faced with the choice between a
well-trained militia and an armed but undisciplined citizenry, the
government might prefer to keep the militia in good order. In this way, and
in this way alone, the Second Amendment could contribute to fostering a
well-regulated militia.

This interpretation of the Second Amendment is consistent with all the
historical evidence. For instance, in the ratification debates about the
original Constitution, Anti-Federalists argued that federal control over the
militia would take away from the states their principal means of defense
against federal oppression and usurpation?a serious danger by their
reading of European history.

James Madison responded that such fears of federal oppression were
overblown, in part because the new government would be structured
differently from European governments. He then pointed to another, and
decisive, difference between America and Europe: The American people
were armed and would therefore be almost impossible to subdue through
military force, even if you imagined that the federal government would try
to use its armies to do so.

In this debate, the Federalists and Anti-Federalists shared two
assumptions: that the proposed new Constitution gave the federal
government almost total legal authority over the army and the militia; and
that the federal government should not have any authority to disarm the
citizenry.

The disagreement was only over the narrower question of how effective
armed civilians could be in protecting liberty. Anti-Federalists regarded the
armed citizenry, and hence the Second Amendment itself, as a rather trivial
safeguard against federal oppression. But the very inadequacy (from an
Anti-Federalist point of view) of the protection that an armed citizenry
could offer against federal oppression also rendered the Second
Amendment noncontroversial. It could not satisfy the Anti-Federalist desire
to preserve the military superiority of the states over the federal
government. That would have been very controversial, and nobody so
much as hinted that the Second Amendment created or protected any sort
of right belonging to state governments.

As a political gesture to the Anti-Federalists, the Second Amendment’s
express recognition of the right to arms was something of a sop. But the
provision was easily accepted because everyone agreed that the federal
government should not have the power to infringe the right of the people to
keep and bear arms, any more than it should have the power to abridge
the freedom of speech or prohibit the free exercise of religion.

Where does this leave us? It leaves us with a great many interesting and
important questions about the meaning of th