What does the Second Amendment restrict? A collective rights analysis.

• Author: Bogus, Carl T.

1. INTRODUCTION

   According to the collective rights model, the Second Amendment only grants people the right to keep and bear arms within the militia. Moreover, the Amendment does not apply to private militias but only to the militia organized by Congress--that is, to the National Guard. This seems to give the Amendment very little bite. We are accustomed to thinking of the Bill of Rights as granting individuals broad, meaningful rights against governmental interference. The entire notion of a right is something one is entitled to even though the majority, through its elected representatives, decides otherwise. Thus, we have the right to speak and worship as we desire even if the government decides such speech or religious worship is harmful to the community; we have the right to a jury trial in certain circumstances even if the government decides that there are better ways to discover the truth. What kind of right is it, then, that gives individuals the right to keep and bear arms only within an entity organized and controlled by the government itself? After all, the government decides who is in the National Guard, and no one questions the National Guard's ability to regulate--fully and absolutely--the possession and use of weapons by its members in their military capacities. Does the collective rights model therefore render the Second Amendment meaningless?

   This question has enormous significance in the debate between those who believe the Second Amendment grants a collective right and those who believe it grants individuals a right to keep and bear weapons for their own purposes, outside and irrespective of militia membership. (1) Advocates of the individual rights model can justifiably argue that an interpretation of the Amendment that renders it meaningless should be disfavored. (2) Admittedly, it is theoretically possible that the Second Amendment had meaning in 1791 but that over the past two hundred and ten years it has become an anachronism. It is also possible, as some have argued, that the right is presently dormant but may reawaken in the future. (3) Nevertheless, it is an accepted canon of constitutional construction that when two possible interpretations of a provision are available, we should generally avoid the one that renders the provision meaningless or purposeless. (4) Therefore, the collective rights model is weakened if it drains the Second Amendment of any kind of practical utility or meaning. This criticism cuts with greatest force if the collective rights model renders the provision meaningless in 1791, of course. Still, the criticism retains at least some rhetorical power if the model renders the provision meaningless today, even if it has been primarily the passage of time that has drained the amendment of practical significance.

   I do not believe that this is the case however. Although the Second Amendment grants only a collective right, it had genuine meaning with potential real-world consequences in 1791, and it still does today. However, I submit that the proper reading of the Amendment is not the one it is generally given. In this paper I shall explore the question of what vitality the collective rights interpretation of the Second Amendment has today--specifically, what restrictions the Amendment places on government activity at the beginning of the twenty-first century.

2. THE COLLECTIVE RIGHTS MODEL

   The Second Amendment reads: "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." (5) All serious readers of the Second Amendment recognize that the Second Amendment is tied to the militia. Individual rights advocates downplay that connection, often by use of two techniques. First, some suggest the prefatory phrase merely explains why the right is granted but does not define it--that is, that the Amendment is to be given exactly the same meaning as if the first thirteen words did not exist. Second, some individual rights advocates argue the Founders believed in a universal militia that in eighteenth century America included all adult, white males, and in contemporary America would include all adults. Both of these arguments drive to the same conclusion: every adult American has a right to keep and bear arms, regardless of whether one actually serves in the militia.

   Several problems arise in these arguments however. First and foremost, the Founders as a whole did not believe in a universal militia. Notwithstanding popular myth and Fourth of July rhetoric, the militia was a flop in the war against the British. General Nathaniel Greene explained why:

   People coming from home with all the tender feelings of domestic life are not sufficiently fortified with natural courage to stand the shocking scenes of war. To march over dead men, to hear without concern the groans of the wounded, I say few men can stand such scenes unless steeled by habit and fortified by military pride. (6) So often did the militia turn and run in the face of the enemy that it became Continental Army doctrine to position militia forces in front of and between Continental Army regulars, who were given strict orders to shoot the first militiamen to bolt.

   After the Revolutionary War the Founders were divided on how the militia should be organized. While some continued to favor a universal militia, others--including Alexander Hamilton, for example--had become convinced that only a select, highly trained militia would be useful. At the Constitutional Convention in Philadelphia, the Founders decided the Constitution should not permanently decide how the militia should be organized; rather, this was to be a policy question left up to Congress. Hence, Congress was given the authority to organize the militia as it saw fit, with the ability to change the composition of the militia as the passage of time and circumstances may demand. (7)

   Individual rights advocates face another problem when they attempt to read the Amendment in a way that essentially ignores the prefatory phrase. This too violates the canon of constitutional construction that provisions should be read in a way that gives every phrase and every word operative meaning. We are to presume that the drafters inserted each and every word deliberately, intending that nothing be superfluous or without purpose. (8) This canon presents considerable difficulty for an interpretation treating the first thirteen words of the Amendment as a mere annotation explaining why the Founders decided to write the next fourteen words.

   The argument that the word militia in the Second Amendment should be read to mean a universal militia consisting of all adult citizens has even greater--indeed, fatal--problems. Another fundamental canon of construction provides that the Constitution is to be read as a whole. (9) Amendments are not to be treated as isolated provisions but as integral parts of the entire document. (10) Moreover, when a word is repeated it is presumed to have the same meaning in each place; thus, when in one instance a word may be susceptible to different meanings, but in another has a definite meaning, we should presume the word was used in the same sense in both places. (11) When we combine this canon with the facts that (1) Madison was the principal drafter of both provisions and clearly knew how militia was defined in the main body of the Constitution, (2) the Founders expressly stated that they had decided not to resolve the universal militia versus select militia debate but to entrust this as a policy question for Congress, and (3) Madison stated that nothing in the Bill of Rights was in any fashion designed to alter the main body of the Constitution, the argument that militia means all adult citizens cannot reasonably be maintained.

   This brings me back to the collective rights model. Why provide, on the one hand, that Congress can organize the militia as it sees fit--deciding who serves in the militia, and regulating possession and use of weapons in militia service--and on the other hand state that the people have a right to keep and bear arms within the militia? A little background is necessary to answer that question.

   As I have explained in detail elsewhere, (12) and will only briefly state here, I believe Madison wrote the Second Amendment to assure the South that Congress--which had just been given the lion's share of authority over the state militia in the recently-ratified Constitution--would not use that power to undermine the slave system. In part, this was an amendment to the slave compromise in the Constitution. At the Constitutional Convention in Philadelphia, southern delegates made it clear the subject of slavery was not negotiable: either the North (13) would agree not to attempt to abolish slavery or the southern states would walk away from Philadelphia and a Union with the North. The result was an obscurely stated constitutional compromise. While scrupulously avoiding the words "slave" and "slavery," the Constitution prohibited Congress from abolishing the African slave trade until 1808 or imposing an import tax of more than ten dollars per slave. It also required that runaway slaves escaping across state lines (and into free territory) be returned to their owners. And it provided for counting slaves as three-fifths of free persons for the purposes of apportioning congressional representation and direct taxation.

   The southern delegates told their constituents that, most importantly of all, the Constitution did not grant Congress any authority to abolish slavery, and that the northern delegates conceded this was the case. But not everyone was satisfied. During the ratification debates, southern anti-Federalists argued that by giving Congress the power to organize and arm the militia (14) and to call them into federal service, (15) the Constitution gave Congress the means to undermine the slave system indirectly. Congress might either disarm the...