In District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects a right to keep and bear arms for self-defense. In dicta, Heller suggests that the Second Amendment protects a right to bear arms for hunting. Because some federal district courts reject a Second Amendment right to bear arms for hunting, this Article explores whether the Second Amendment of the United States Constitution protects a right to keep and bear arms for the purpose of killing game. This Article examines the text of the Second Amendment while exploring its limitations and its history. It traces the Amendment's English and American origins by reviewing preeminent works by legal scholars William Blackstone and St. George Tucker, colonial statutes, early state constitutions, and other post-Revolutionary War era records and commentaries. Next, this Article discusses the Constitutional Amendment as interpreted by Heller and its progeny. In light of the text and history of the Second Amendment, this Article concludes that the Amendment protects a right to bear arms for the purpose of hunting.
"Towards his prey [the hunter] takes a quasi-religious attitude. The hunted animal is hunted as an individual.... But the hunted species is elevated to divine status as the totem ...
In 2012, five days after the movie-massacre in Aurora, Colorado, President Barack Obama said, "I, like most Americans, believe that the Second Amendment guarantees an individual the right to bear arms. And we recognize the traditions of gun ownership that passed on from generation to generation--that hunting and shooting are part of a cherished national heritage." (2) This was not the first time President Obama proclaimed his belief that the Second Amendment protects an individual right to keep and bear arms for the lawful purpose of hunting. (3) Nor is Obama the first modern president to hold this belief. President Clinton noted in his 1995 State of the Union address:
The Members of Congress who voted for [the Brady Handgun Violence Prevention Act] and I would never do anything to infringe on the right to keep and bear arms to hunt and to engage in other appropriate sporting activities. I've done it since I was a boy, and I'm going to keep right on doing it until I can't do it anymore. (4) Constitutional law scholar Cass Sunstein said, "I strongly believe that the Second Amendment creates an individual right to possess and use guns for purposes of both hunting and self-defense," a statement with which Sunstein's Harvard predecessor--Alan Dershowitz--concurred. (5) A belief is one thing; but what is their evidence for that belief?
The Second Amendment provides: "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (6) As written, the twenty-seven word Amendment protects the right to keep and bear arms without any qualification or explanation of its purpose. (7) The United States Supreme Court in District of Columbia v. Heller held that the Second Amendment protects a right to keep and bear arms for self-defense. (8) Certainly, this is textualism and originalism gone mad! (9) The Second Amendment does not say it protects a right to keep and bear arms for self-defense or for hunting. (10) This Amendment, however, is a unique right deeply rooted in history and American tradition.
The Heller Court explained that the text of the Amendment itself is not enough to uncover its meaning, because the Second Amendment, like other rights embedded in the Bill of Rights, codified a pre-existing right. (11) According to Heller and its progeny, we must review the text and history of the Second Amendment to understand its protections. After parsing the language of the text and examining the historical background of the Amendment, the Supreme Court noted that the Second Amendment protects a right to keep and bear arms for the militia and for the natural right of armed self-defense. (12) The Heller Court, in dicta, suggested that the Second Amendment right protects a right to bear arms for hunting. (13) With at least seventeen state constitutions unequivocally protecting a right to hunt using arms, (14) President Obama and the others mentioned above hold a penumbral view of the Second Amendment, viz., that the Second Amendment implicitly protects a right to keep and bear arms for hunting. Does this belief hold true?
This Article explores whether the Second Amendment of the United States Constitution protects a right to keep and bear arms for the purpose of killing game. (15) Part I examines the text of the Second Amendment. (16) Part II reviews the history of the Amendment as it relates to hunting. Part III discusses the constitutional Amendment as interpreted under contemporary Second Amendment jurisprudence. (17) In light of the Second Amendment's text and history, and the evidence thereof, this Article argues that the Amendment protects a right to keep and bear arms for the purpose of hunting. (18)
THE TEXT DOES NOT FORECLOSE KEEPING AND BEARING ARMS FOR HUNTING
'"You seem very clever at explaining words, Sir, ' said Alice. 'Would you kindly tell me the meaning of the poem called "Jabberwocky"?" (19)
Words have meanings. Their meanings--both traditional and idiomatic-are determined by social convention. Accordingly, the Heller Court painstakingly evaluated and defined each word and phrase of the Second Amendment pursuant to its original meaning. The majority, however, was not alone in its originalistic interpretation of the Amendment. In fact, the petitioner and respondent presented the Court with arguments entirely based on the meaning of the Second Amendment at the time of the founding of the United States. Even dissenting Justices Stevens and Breyer couched their arguments in originalism. (20) Surely, this must have shocked many Supreme Court watchers. What is the meaning of twenty-seven words of the Amendment?
ONE PURPOSE FOR CARRYING ARMS: THE PREFATORY CLAUSE
As Heller explained, the prefatory clause of the Second Amendment announces one purpose for the Second Amendment right. (21) The prefatory clause states: "A well-regulated Militia, being necessary for the security of a free State". (22) The Court noted, that in creating the prefatory clause, the Framers codified the right to keep and bear arms for service in the militia, and that they did so out of fear that Congress would usurp state militia. (23) The Court, however, explained that the prefatory clause does not limit the Second Amendment right. (24) In other words, the announced reason for codification of a pre-existing right-the fear that the militia would be dismantled or controlled by Congress--cannot limit the right to bear arms. (25) The Court, rather, said the prefatory clause sheds light on the operative clause.
The two clauses are connected and cannot violate the other's meaning. (26) Furthermore, the prefatory clause supplies but one purpose of the right to keep and bear arms. (27) Certainly, based on the prefatory clause, an argument that the right to keep and bear arms protects a right for the purpose of hunting is not foreclosed. (28) Any argument based on the prefatory clause as controlling and limiting the operative clause was expressly rejected by Heller. (29) In other words, there may be other purposes in addition to its stated purpose. The Court found that self-defense was another purpose for which an individual has a right to keep and bear arms. This purpose--self-defense--and other purposes, as the Court noted, are determined by the text of the Amendment and the history of the right to keep and bear arms. Therefore, the prefatory clause does not preclude hunting as one such purpose.
THE UNMODIFIED OPERATIVE CLAUSE: RIGHT TO KEEP AND BEAR ARMS FOR LAWFUL PURPOSES
The Second Amendment protects a right to keep and bear arms. This operative clause of the Amendment is not qualified in terms of its purpose. (30) At the time of the founding, state Second Amendment analogues contained what the Court called "purposive qualifying phrases" or "modifying phrases." (31) To list a few, these modifying or purposive qualifying phrases include "for common defense," "for defense of self and state," and "for the purpose of killing game." (32) The Second Amendment, however, does not contain this qualifying language. (33) In other words, the Second Amendment right "to keep and bear arms" is not limited by any specific purposive qualifying phrase or modifying phrase, like the rights of the four state Second Amendment analogues. (34)
As Heller noted, however, the Second Amendment protects "the carrying of arms [and] a modifier can limit the purpose of the carriage." (35) The Court found that one such "modifier" that limited the purpose of carrying arms, based on the history of the Second Amendment right, was self-defense. To put it differently, the Second Amendment protects a right to keep and carry arms for self-defense. Looking to the Second Amendment analogues as modifiers of the right to carry arms under the Second Amendment and the unqualified operative clause of the Second Amendment, hunting most certainly, fits as a limit on the purpose of carriage. The operative clause's structure, therefore, supports hunting as one of the right's purposes.
To Keep and To Bear Arms
The Heller Court explained that "arms" means weapons, (36) "to keep" means to have, (37) and "to bear" means to carry. (38) Any argument to the contrary is error. As evidence of this, the Court rejected the District of Columbia's argument that the "to bear arms" phrase was an idiomatic expression only associated with militia use. (39) Rather, the Court found that the term "to bear arms" unambiguously "referfs] to the carrying of weapons outside of an organized militia." (40) Thus, the Second Amendment protects a right to have and to carry weapons inside an organized militia as well as outside...