Guns, words, and constitutional interpretation.

Author:Powe, L.A., Jr.
 
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In the aftermath of the Oklahoma City bombings, Linda Thompson, the self-appointed Acting Adjutant General of the Unorganized Militia of the United States, proclaimed that the Second Amendment "isn't about hunting ducks; it's about hunting politicians."(1) She might as well have added that we ought to shoot a few politicians right now as a message to the rest to wake up and stop stealing our rights.(2)

Thompson's statement represents the interesting, and not infrequent, constitutional blend of a First Amendment exercise to promote Second Amendment rights. She readily can be distinguished from mainstream constitutional law scholars both by profession and by example. Civil libertarians with strong First Amendment affinities traditionally have had even less use for the Second Amendment than gun advocates have had for the civil liberties of others.(3) In general, First Amendment scholars view the rights protected by the Second Amendment as deserving less protection than does thought.(4) They agree with the prevailing constitutional interpretation, which holds that the First Amendment guarantees strong individual rights to freedom of expression while the Second Amendment guarantees no individual rights at all, only a collective right to have a very well regulated militia.(5) In the words of the American Civil Liberties Union (ACLU), "[e]xcept for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."(6)

A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual right to possess guns.(7) Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their articles.(8) Their "conversion" rate, however, is incremental and slow-one person at a time every so often. In the meantime, most scholars reject the individual rights claim without seriously considering the merits of the scholarship on both sides of the issue. One reason is that the Supreme Court supposedly settled the issue, rejecting an individual rights claim, more than fifty years ago.(9) Another reason may be that the new Second Amendment scholarship conflicts with the hoped-for converts' political views.(10) Yet another reason may be that it analyzes the amendment in terms of text and history.(11) The former is unconvincing (save for those who wish to be convinced), while the latter rests on a claim that the dead hand of the past should rule the present. The debate, on its present terms, seems stagnant because it has become repetitious and stylized.

Neither First Amendment nor Second Amendment scholars, nor any other constitutional law experts, have ever suggested that it might be enlightening to combine the two amendments and explore their interpretation not as a pair, but jointly nevertheless.(12) Putting the two amendments through the various modes of constitutional interpretation yields some interesting insights about both constitutional interpretation and preferences for certain rights. This Article explores these insights, after first placing Thompson's comments in the context of modern constitutional doctrine.

  1. THE ISSUE

    If both Linda Thompson's comments and my hypothetical extension of them were placed on a Constitutional Law exam, professors would have no difficulty flunking any student who did not recognize that Thompson's speech was protected fully by the current positive law of the First Amendment. Most professors probably would approve of this result. In the first place, she was at most advocating assassination, and generalized advocacy of violence receives full protection.(13) Only when advocacy merges into incitement would the speaker lose constitutional protection.(14) Second, "right now" is ambiguous as to time. Brandenburg v. Ohio(15) as well as Hess v. Indiana" mandate an immediacy of action that Thompson's words, issued over broadcast television, lack. Third, there may be no basis for finding, as also required by Brandenburg, that the prospect of attendant assassination is high.(17) Thus, like Robert Watts,(18) Thompson was just letting off steam, an important safeguard provided by a system of freedom of expression.(19)

    There was a time, however, when such utterances, as a matter of positive law, would have justified a jail sentence. As recently as 1927, the Court held that the government could criminalize a speech if it could have reasonably believed that the speech might cause harm.(20) It is hardly unreasonable for a legislature to believe that speech advocating political assassination, even if it is merely hyperbolic, raises the probability that killings would occur.(21) Therefore, the government could prohibit such speech. This, however, was a long time ago, during the First Amendment Dark Ages of Schenck,(22) Debs,(23) Abrams,(24) Gitlow,(25) and Whitney.(26)

    A clever answer might note that the laws were aimed at preventing death, injury, and the destruction of property--surely a compelling state interest. They were narrowly tailored to ban the statements that implicated the interest, and no less restrictive alternative seemed likely to work because the laws against seditious conduct did not appear to deter all such conduct.(27) There certainly is no reason, though, to believe that such an argument would gain assent from the current Supreme Court, nor does it have much academic support.

    Unless the constitutional law professor were asking an interpretive question about undiscussed constitutional provisions, analysis of the Second Amendment would not matter because, with a single limited exception,(28) no Constitutional Law casebooks cover the Second Amendment.(29) Our hypothetical professor quickly could note that Thompson fails as a constitutional interpreter because the Second Amendment is not about political assassination--no constitution could be that stupid. "Only madmen ... can suppose that militias have a constitutional right to levy war against the United States, which is treason by constitutional definition."(30) Instead, by its very terms, the Amendment is addressed to the militia and military.(31) Therefore, it is not about duck hunting either; as John Ely has noted: "[T]he framers and ratifiers apparently opted against leaving to the future the attribution of purposes, choosing instead explicitly to legislate the goal in terms of which the provision was to be interpreted."(32)

    Hence for all practical purposes, the Second Amendment is a dead letter, deader indeed than the Third Amendment, which still could be violated at least theoretically.(33) Former Harvard Law School Dean and Solicitor General Erwin Griswold summed it up tersely: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American constitutional law."(34) When someone of Griswold's stature can issue such a blanket statement, it indicates that there are others supporting this viewpoint.(35)

    If someone knew nothing about the amendments, she might think it strange that the first of the amendments in the Bill of Rights enjoys a robust existence, but the very next is so stunted that it may be deemed dormant. If she knew something about legal scholarship, she would not even have to be cynical to wonder if the reason the First Amendment flourishes and the Second Amendment withers is that legal elites the one, but not the other. If that explanation should prove true, is such bias a legitimate way to interpret a constitution?(36)

    There is no little irony in the dominant approaches to the first two amendments. The First Amendment has been construed to guarantee a right to advocate revolution, and almost all scholars applaud this construction.(37) Those same First Amendment scholars, however, would believe it absurd to construe the Second Amendment to have anything to do with revolution or, for that matter, any individual right. Yet among those who have written articles, as opposed to a sentence or a paragraph, on the Second Amendment in the last fifteen years, little credibility is given to categorically rejecting any connection between the Amendment and individual rights.(38) A substantial body of scholarship, including work by Sanford Levinson,(39) Ahkil Amar,(40) and William Van Alstyne,(41) has been synthesized by Glenn Reynolds into what he calls the "Standard Model" of the Second Amendment,(42) and this model concludes that the Amendment is precisely about revolution and individual rights.(43) The Second Amendment guarantees an individual right to bear arms because the Second Amendment is about fear of tyranny.(44) Yet the Standard Model thus far remains hermetically sealed from federal judicial interpretation.

    Because this growing literature has framed the Second Amendment debate over whether there is a guarantee of an individual right to bear arms, I shall treat the debate, as addressed by the literature, on its own terms and assume that the dichotomy is between an individual right and a generic collective right that guarantees guns only in the context of a regulated state militia. It should be noted, however, that adherents to the collective right theory are split over the issue of who has the authority to regulate the militia. The dominant view is that the authority initially rests with the states, but is ultimately subject to federal control.(45) Under this view, neither an individual nor a state could control access to weapons; the Second Amendment is rendered nugatory.(46) A potential, but untested view, is that the ultimate control rests with the states.(47) This view sits uneasily with the outcome of the Civil War, and the use of the National Guard to integrate schools in Little Rock a century later.(48) The third collective rights position is similar to the individual rights view in that it eschews a role for government. According to this theory, the Second...

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