The limits of Second Amendment originalism and the constitutional case for gun control.

Author:Rosenthal, Lawrence
Position:III. The Constitutional Case for Firearms Regulation, with footnotes, p. 1229-1259

Thus far, the search for an authentic Second Amendment originalism has borne little fruit. If the original meaning of the Second Amendment's operative clause is taken literally, there appears to be little basis for limiting anyone's ability to possess or carry firearms in common civilian use. Yet, this is inconsistent with the approach taken in Heller, its application in lower courts, and the history of firearms

regulation. Accordingly, it is difficult to reconcile an understanding of the Second Amendment's original meaning with Heller's dicta on permissible regulation, its focus on a core interest in lawful armed defense, and the history of firearms regulation. Perhaps for these reasons, some commentators have argued that the scope of permissible firearms regulation has its basis in popular sentiment rather than the Constitution's text. (199) But there is something deeply anomalous about reading the individual rights protected by the Constitution to ensure that the scope of regulatory authority mirrors public sentiment. After all, there is little reason to believe that a Bill of Rights is necessary to ensure that elected officials hew to the public's sensibilities about gun control or any other issue. As Justice Scalia has put it: "If the Constitution were ... a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature?" (200) Surely the more persuasive account is that the purpose and effect of codifying an individual right as constitutional law is to protect it against the vagaries of popular opinion. (201) If Second Amendment jurisprudence is properly understood to sustain gun-control laws when they reflect majoritian sensibilities rather than hewing to the constitutional text, perhaps the courts have made a wrong turn.

There is, however, one more source of regulatory authority to consider, one that has been hiding in plain sight.

  1. Regulatory Power and the Preamble

    It is time to return to the Second Amendment's preamble. After all, by referring to the existence of "[a] well regulated Militia," (202) the Second Amendment's preamble, rather than abolishing the regulatory power over the militia conferred by Article I, (203) expressly contemplates continued regulatory authority, whether by Congress or the States. (204) Moreover, Heller concluded that the original meaning of the term "Militia" refers not to "the organized militia," but rather "all able-bodied men." (205) The Court added that the "militia" was originally understood as comprised of "the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." (206) Thus, the class that is to be "well regulated" consists of all who are able-bodied and capable of military service, regardless of whether they are actually enrolled in an organized militia. In short, Heller treats the militia and those entitled to exercise the right to keep and bear arms as, for all practical purposes, synonyms. Moreover, because the framing-era understanding was that the right would be exercised by those subject to regulatory authority, it would do serious violence to this original understanding to disaggregate the right from the existence of regulatory authority. After all, the framing-era understanding was that the right would be exercised by individuals subject to regulation. (207)

    As for the phrase "well regulated," the first edition of Webster's dictionary defined "regulated" as "[a]djusted by rule, method or forms; put in good order; subjected to rules or restrictions." (208) Heller stated that the original meaning of the phrase was "the imposition of proper discipline and training." (209) These terms, of course, are expansive, contemplating not merely training but also rules and "discipline," which could conceivably embrace everything from a forfeiture of the right to keep and bear arms as a consequence of misconduct to a variety of prophylactic measures that endeavor to reduce the likelihood of misconduct. (210) Thus, the preamble indicates that the Second Amendment preserves substantial regulatory authority.

    This understanding of the regulatory authority preserved by the preamble explains a great deal. The original meaning of the Second Amendment's operative clause, as explicated in Heller, offers no apparent basis for any limitation on the right of an individual to possess or carry firearms in common civilian use, nor does it appear to concern itself with a core interest in lawful armed defense. Yet, Heller acknowledges that the preamble can be used to shed light on the operative clause; it explains that "[l]ogic demands that there be a link between the stated purpose and the command," and that this "requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause," thereby serving the preamble's "clarifying function." (211) Although the Court found no ambiguity in the original meaning of the phrase "the right of the people to keep and bear arms," (212) it made no such claim regarding the term "infringed" in the operative clause. Indeed, both the Court's dicta on permissible firearms regulation and its precise holding suggest a good deal of ambiguity in that term. In any event, nothing in Heller suggests that the operative clause should be read in a manner inconsistent with the preamble; just as Heller concluded that the preamble could not be read to limit the operative clause, it would be untenable to read the operative clause to render nugatory the regulatory authority acknowledged in the preamble. The two clauses must be harmonized, not placed in conflict with each other. Understanding the preamble as supplying a textual acknowledgement that not all regulation amounts to an "infringement" on the right to keep and bear arms, in turn, solves a good number of textual problems lurking in Heller's treatment of firearms regulation. The Second Amendment, read in light of its preamble, reflects a textual commitment to regulation found nowhere else in the Bill of Rights. (213)

    It is therefore unsurprising that history yields ample evidence of expansive regulatory authority over firearms, as Part II.A above reflects. Indeed, the right to keep and bear arms has long been understood to permit prophylactic regulation, including prohibitions on the possession of firearms by classes of individuals seen as posing unacceptable risks to public safety, such as Catholics at the time of the English Bill of Rights or free Blacks and loyalists in the framing era. The Second Amendment also seems to have been understood to permit prophylactic regulation where firearms were carried under circumstances regarded as suspicious, such as prohibitions on carrying concealed weapons. If the right coexists with broad regulatory power, then these limitations on the right to keep and bear arms become textually comprehensible. Moreover, since the preamble preserves regulatory authority in a generic manner, rather than endeavoring to preserve framing-era practice as in the Seventh Amendment, it becomes possible to explain why the right to keep and bear arms tolerates regulations unknown in the framing era.

    To be sure, the preamble does not contemplate limitless regulation. For one thing, a boundless regulatory power could convert the right into a nullity, which is not a plausible reconciliation of the operative clause and the preamble. For another, as Nelson Lund has observed, "something can only be 'well regulated' when it is not overly regulated or inappropriately regulated." (214) Yet, beyond its recognition of both a right and a regulatory power that evidently must be tailored in some appropriate way, the text offers nothing like a doctrinal formula for reconciling right and regulatory authority.

    When constitutional text is written at a high level of generality, original meaning will frequently be insufficient to resolve many interpretive questions. For this reason, even many originalists acknowledge that there are occasions on which original meaning is insufficient to resolve a constitutional debate, necessitating resort to what they label nonoriginalist "construction." (215) Nonoriginalists, for their part, cheerfully acknowledge that the interpretation of constitutional text must often be supplemented by judicially created doctrine because of the inadequacy of the text to resolve any number of constitutional controversies. (216) Whether labeled "constitutional construction" or "living constitutionalism," the frequently acknowledged necessity to resort to nonoriginalist doctrine to address matters on which the Constitution's text is inconclusive reflects the limits of originalism as a vehicle for constitutional adjudication.

    The Second Amendment presents a case study in the limits of originalism. Even accepting Heller's originalist methodology and its account of original meaning, originalism is of highly limited utility in developing Second Amendment jurisprudence. This observation surely leads one to question the utility of the originalist project--if even Heller cannot produce an authentically originalist jurisprudence, what might originalism offer constitutional adjudication? Perhaps the original meaning of constitutional text, when drafted at a high level of generality as is so often the case, is simply too abstract to offer much useful guidance for constitutional adjudication. (217) That seems to be the case with the Second Amendment, with its text offering only the broadest hint at the relationship between right and regulatory power.

    Consider, then, the possibilities that nonoriginalist construction offers for reconciling firearms rights and regulatory authority. Constitutional law is, after all, replete with instances of nonoriginalist construction. One type of nonoriginalist construction--the...

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