What the 9th Circuit Opinion Doesn’t Dicuss
The article is below and contains some of the various state
constitutional version of the Second Amendment and
Vermont’s is:
Article 16. [Right to bear arms; standing armies;
military power subordinate to civil]
That the people have a right to bear arms for the defence of themselves and the State–and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
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FYI (copy below):
http://volokh.blogspot.com/2002_12_01_volokh_archive.html#90019715
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Thursday, December 05, 2002
[Eugene Volokh, 6:47 PM]
THINGS THE NINTH CIRCUIT’S SECOND AMENDMENT OPINION DOESN’T
DISCUSS:
1. The Ninth Circuit repeatedly stresses that the right
relates to “a military force established and controlled by a
government entity,” “not some amorphous body of the people
as a whole” (p. 32). But nowhere does the Ninth Circuit
acknowledge that this militia was essentially the adult
white male able-bodied citizenry . Not a National Guard, not
a small group of people chosen by the state, but pretty much
everyone who mattered at the time (yes, I know it was
limited to white males, but that was the 1790s for you),
subject only to an 18-to-45 age restriction (which I suspect
covered the great majority of people). Much more consistent
with a right of the people — you and me — than if
“militia” simply meant a National Guard.
You’d think that in a discussion of what “militia” means in
the Second Amendment, the Ninth Circuit would quote the
Supreme Court’s statement as to what this means: “The
signification attributed to the term Militia appears from
the debates in the Convention, the history and legislation
of Colonies and States, and the writings of approved
commentators. These show plainly enough that the Militia
comprised all males physically capable of acting in concert
for the common defense.” United States v. Miller (1939).
You’d think that the Ninth Circuit would quote the Militia
Act of 1792 (enacted by Congress three years after Congress
proposed the Second Amendment), which defined “militia” to
include ” each and every free able-bodied white male citizen
of the respective states, resident therein, who is or shall
be of the age of eighteen years, and under the age of
forty-five years [subject to some narrow exceptions]” — and
curiously the definition remains pretty much the same today.
You’d think that it would quote the four state ratifying
conventions’ calls for a right to bear arms, which all speak
of a “well regulated Militia composed of the body of the
people trained to arms” or “capable of bearing arms.”
But you’d be mistaken in so thinking, because the Ninth
Court never quotes these sources.
2. What about leading constitutional commentators of the
era? The Second Amendment was clearly a broader version of
the right to have arms in the English Bill of Rights of
1689, and fortunately Sir William Blackstone — the leading
English legal commentator of the late 1700s, and apparently
a profound influence on the Framers — discussed the right
at length. The right clearly wasn’t a right of states;
there were no states or other quasi-sovereign political
subdivisions in England; Blackstone called it a “right of
the subject”, clearly an individual right. The name
Blackstone does not appear once in the Ninth Circuit
opinion.
What about Justice Story, the leading U.S. constitutional
commentator of the early 1800s, who got his legal education
in the decade following the enactment of the Second
Amendment? He referred to the right not as a right of
states, or of the militia, but as a “right of the citizens”
. This item is nowhere quoted in the Ninth Circuit opinion
(the only reference to Story is in a quote from Justice
Thomas’s opinion in Printz v. United States , a quote that
does not include the assertion that the right to bear arms
is a right of the citizens.) Other leading commentators of
the 19th century, such as St. George Tucker (1803) or
Thomas Cooley (1880) are likewise never mentioned.
3. What about the rights to bear arms in state Bills of
Rights of the era:
* “Every citizen has a right to bear arms in defense of
himself and the state” (Connecticut, 1818, the first
Connecticut bill of rights).
* “[T]he right of the citizens to bear arms in defense of
themselves and the State shall not be questioned” (Kentucky,
1792).
* “The people have a right to keep and to bear arms for the
common defence” (Massachusetts, 1780).
* “[T]he people have a right to bear arms, for the defence
of the State” (North Carolina, 1776).
* “[T]he people have a right to bear arms for the defence of
themselves and the state” (Pennsylvania, 1776).
* “The right of the citizens to bear arms in defence of
themselves and the State shall not be questioned
(Pennsylvania, 1790).
* “[T]he freemen of this State have a right to keep and bear
arms for their common defence” (Tennessee, 1796).
* “[T]he people have a right to bear arms for the defence of
themselves and the State” (Vermont, 1777).
Some of these speak in terms of the common defense, and some
also in terms of self-defense, and they do show, I think,
that the purpose of the right was in large part related to
societal defense (including defense against domestic
tyrants). But it seems to me clear that, whatever its
purpose, the right can’t have belonged to the state, or to a
force whose membership is selected and controlled by the
state. The rights must be rights of individuals against the
state, since that’s the function of state Bills of Rights.
(The Bill of Rights in the federal constitution can at least
theoretically secure the rights of states, but not the Bill
of Rights in a state constitution.)
I suppose it’s possible for the “right of the people to bear
arms” in state constitutions to mean a right of individuals
against the government, and for the same phrase in the
contemporaneously enacted federal constitution to mean a
right of states against the federal government. But it
should be worth discussing, no, especially given the Court’s
view that contemporaneous state constitutional provisions
are quite relevant when trying to interpret the federal
provision. See, e.g., Harmelin v. Michigan, 501 U.S. 957,
966 (1991) (examining Eighth Amendment in light of
contemporaneous state constitutional provisions on
punishment); Taylor v. Illinois, 484 U.S. 400, 407 & n.13
(1988) (interpreting Sixth Amendment’s Compulsory Process
Clause in light of contemporaneous state constitutional
provisions on criminal defendant’s right to establish
elements of his case); Marshall v. Barlow’s, Inc., 436 U.S.
307, 311 (1978) (using Virginia Bill of Rights as aid in
interpreting Fourth Amendment’s Warrant Clause). And yet
the Ninth Circuit opinion nowhere mentions them.
Disappointing.