The right to keep and bear arms in the states: ambiguity, false modesty, and (maybe) another win for originalism.

• Author: Neily, Clark M., III

District of Columbia v. Heller (1) was an easy case to get right. First, there was the text of the Second Amendment, which plainly states that "the right of the people to keep and bear Arms, shall not be infringed." (2) Second, there was history, much of it created by citizen-soldiers who had just won their independence--and knew they would have to keep fighting for it--with guns. Next were the reams of academic scholarship from across the ideological spectrum that had come to establish the individual rights interpretation as the "standard model" of the Second Amendment. (3) Finally, there was the sheer unpersuasiveness of the arguments on the other side, which Judge Alex Kozinksi once described as having "the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it." (4)

Another question that should be easy--and for most of the same reasons--is whether the right to keep and bear arms applies against the states. The Supreme Court did not address that issue in Heller because the District of Columbia is a federal enclave to which the Bill of Rights, and thus the Second Amendment, applies directly. By contrast, if the federal Constitution does protect a right to keep and bear arms against state infringement, it can only be through the Fourteenth Amendment, an issue Heller specifically eschewed. (5) The question has now been presented to the Supreme Court. (6)

The short answer is yes, the Fourteenth Amendment does protect an individual right to keep and bear arms from state infringement--emphatically so. But there are two paths to that result, only one of which reflects the spirit of originalism for which Justice Scalia's Heller opinion has been justly praised. The originalist approach would require the Supreme Court to confront a 136-year-old mistake that pits history and the text of the Constitution against the false modesty of government-favoring judicial restraint. This Article argues that the Court should take the originalist path as a matter of principle and that there may never be a better chance to do so.

I.

Lawyers, including ones who have become judges, have a knack for finding ambiguity where convenient. But constitutions necessarily speak in terms that are often broad and conceptual rather than narrow and specific. Moreover, because language is not static, words or phrases whose meaning was clear when drafted can grow less so with time, creating opportunities for later generations to proclaim ambiguity where none originally existed. Unfortunately for the body politic, ambiguity-driven minimalism plus government-friendly judicial restraint is like mixing booze with sleeping pills: a dangerous and lethargic combination.

Take the text of the Second Amendment. There is nothing remotely ambiguous about the imperative "shall not be infringed." Yet, until Parker v. District of Columbia (7) in 2007, no federal appellate court had ever used the Second Amendment to protect gun ownership. In fact, most circuits had rejected the individual rights interpretation either explicitly or implicitly, evidently on the basis of perceived ambiguities in the text. (8) Two of the most commonly cited sources of ambiguity in the Second Amendment are the phrases "well regulated Militia" and "keep and bear." (9)

It is fair to say that both phrases are archaic. For example, a Westlaw search for all cases containing the phrase "keep and bear" without "arms" or "firearms" produces twenty-nine cases, all of them involving either a "keep and bear harmless" indemnity provision, actual live bears, or, most recently, a sexual harassment case featuring a stuffed toy bear that made obscene noises when squeezed. (10) Similarly, the phrase "well regulated Militia" includes an adjectival phrase--"well regulated"--that is no longer used in standard English and a noun--"Militia"--that many people mistakenly equate with today's National Guard. (11) The National Guard is an organized fighting force subject to federal control that founding-era Americans would likely have considered to be a standing army--precisely the force that citizen militias were meant to oppose if necessary to prevent tyranny.

Of course, the problem of textual ambiguity is not remotely confined to the Second Amendment. Starting with the First Amendment, exactly what does it mean to "establish[]" or permit the "free exercise" of religion, and where is the line between permissibly regulating speech and unconstitutionally "abridging" it? (12) The Third Amendment prohibits quartering of troops "in time of peace." (13) America has occupying forces engaged in combat operations in Iraq and Afghanistan and is waging a "global war on terror" besides--so are we at war or at peace? And what exactly makes a search "unreasonable" under the Fourth Amendment? (14) The list goes on and on.

Simply put, ambiguity is an inescapable fact of language and law--particularly constitutional law--and very few provisions in the Constitution speak with anything approaching perfect clarity. Ambiguity would not be a problem if judges handled it consistently, but often they do not. Instead, many judges treat it as a linguistic ratchet whereby arguably ambiguous provisions that create or confer government power are given the broadest possible scope, while arguably ambiguous power-limiting provisions are often interpreted so narrowly as to render them essentially meaningless. Just consider the vastly different ways the Supreme Court has treated the power-granting Commerce Clause--interpreting it as broadly as human invention can devise (15)--and the power-limiting Ninth Amendment, which Judge Bork famously likened to an "ink blot," (16) and which the Court has consistently treated as such. Gun rights and regulations provide an excellent illustration of that dynamic.

II.

Shortly after Heller came down in June 2008, Fourth Circuit Judge J. Harvie Wilkinson published a sensational article in the Virginia Law Review. (17) The piece caused an immediate stir because Judge Wilkinson, a widely respected conservative jurist, argued that Heller's interpretation of the Second Amendment as protecting an individual right to keep and bear arms was an example of judicial activism on par with Roe v. Wade's discovery of the right to an abortion within the Due Process Clause of the Fourteenth Amendment. (18) According to Judge Wilkinson, "'Roe and Heller share a significant flaw: both cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." (19)

I respectfully disagree with Judge Wilkinson. As noted above, I do not believe there is anything remotely ambiguous about the Second Amendment's command that "the right of the people to keep and bear Arms, shall not be infringed." (20) But far more troubling to me is the very natural way in which Judge Wilkinson's critique of Heller flows from his conviction-widely held among modern conservatives--that "judges should be modest in their ambitions and overrule the results of the democratic process only where the constitution unambiguously commands it." (21) Few would quibble with the first part of that maxim, except perhaps to note that when it comes to overweening ambition on the part of government officials there seems little reason to single out judges. But the second part is deeply concerning.

As explained above, constitutions rarely speak with perfect clarity on any subject--that is simply not their function--and a maxim that requires judges to remain passive unless the Constitution unambiguously commands action is a recipe for virtually unbridled government power. Take gun regulations. The Constitution established a federal government of limited powers that did not include the police power--that is, no roving charter to pass laws promoting public health, safety, and welfare. But Congress wields that power anyway, regulating everything from guns (22) to funeral homes (23) to the plants we grow in our backyards. (24) Does the Constitution really give the federal government the power to dictate the minimum length of a shotgun barrel (25) or tell farmers how much wheat they can grow on their farms for personal consumption? (26) Certainly not. (27) But because those powers are, at least by some lights, not unambiguously denied to Congress by the Constitution, judges have allowed Congress to exercise them. And because the right to grow plants and consume them is not unambiguously protected by the Constitution, Congress gets to regulate that, too. (Short-barreled shotguns remain an open question for now.) So if you have ever wondered how it is that we have a federal Department of Education and a National School Lunch Program, (28) it is not because the Constitution authorizes them; instead, judges have done so by refusing to enforce clearly expressed limits on federal power.

Thus, the problem with the ostensibly value-neutral brand of judicial minimalism espoused by Judge Wilkinson in his Heller critique is that it is not remotely value-neutral. Instead, it reflects a very clear bias in favor of majoritarianism, a bias that is only magnified by an interpretive methodology in which textual ambiguity always favors the government. Is it really "modest" (29) to demand of our Constitution something--that is, to speak with incontrovertible clarity about limits on government power--that it was never designed to do or to impose upon it a spirit of majoritarianism that is distinctly belied both by its text and its...