The Second Amendment: structure, history, and constitutional change.

• Date: 01 December 2000
• Author: Yassky, David
• Published date: 01 December 2000
• Author: Yassky, David

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.

--United States Constitution, Amendment II

A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 -- when the Supreme Court decided United States v. Miller,(1) its only decision squarely addressing the scope of the right to "keep and bear Arms" -- the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment to forbid only laws that interfere with states' militias.(2)

Recently, however, that judicial orthodoxy has come under attack from a group of revisionist scholars.(3) Rather than protecting only the states' militia, the revisionists have argued, the Amendment "protects an individual right inherent in the concept of ordered liberty."(4)

The revisionist position emerged in the 1980s and has won growing acceptance among constitutional scholars.(5) The breakthrough moment came in 1989, when Sanford Levinson published his article The Embarrassing Second Amendment in the Yale Law Journal.(6) Levinson largely accepted the revisionists' historical account of the Second Amendment, and he suggested that the Amendment limits legislators' ability to regulate guns to a much greater extent than judges and scholars had theretofore acknowledged.

Levinson's article brought the revisionist project a new level of attention and legitimacy.(7) Since its publication, the number of revisionist articles has grown substantially, casebooks have begun to recognize the revisionist position,(8) and other leading constitutional law scholars have joined Levinson in accepting, at least partially, the revisionist argument.(9) In particular, Akhil Amar's recent tour-de-force The Bill of Rights includes a thorough and powerful argument in support of the revisionist position.(10)

Most important, revisionist work has begun to influence the judiciary. In his concurring opinion in the 1997 case Printz v. United States, Justice Thomas (writing only for himself) proposed a reexamination of the Second Amendment. Thomas suggested that the Amendment creates a "personal right to `keep and bear arms,'" and he hinted that this right would preclude aggressive gun control regulations.(11)

Just last year, a District Court in Texas followed up on Thomas' suggestion by striking down a federal statute banning persons subject to certain types of restraining orders from possessing firearms.(12) The decision, United States v. Emerson, was only the second in the nation's history in which a federal court used the Amendment to invalidate a gun control law (the first was the District Court decision in Miller which the Supreme Court subsequently reversed in 1939(13)). Both Justice Thomas' Printz opinion and the Emerson Court relied heavily on revisionist scholarship.

The Second Amendment debate sparked by the revisionists has attracted considerable attention in the press,(14) presumably because of its possible impact on public policy. If the revisionists are successful in changing doctrine, courts may well narrow the parameters of permissible gun control initiatives. But paving the way for such initiatives is not my concern here.(15) The real stakes in the Second Amendment debate are not practical, but theoretical.

In his pathbreaking article, Professor Levinson wrote that the Second Amendment is "profoundly embarrassing" to many students of the Constitution. I agree with that characterization, but I disagree with Levinson about the source of the embarrassment. For Levinson, the Amendment calls into question scholars' commitment to result-indifferent interpretive methodology. He noted that the Amendment had (at the time he was writing) been entirely ignored by mainstream constitutional scholars, and he attributed this neglect to a "perhaps subconscious fear that altogether plausible, perhaps even `winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."(16)

The real source of the embarrassment goes deeper. The Amendment is troublesome because it evokes scholars' latent confusion about the sources and mechanisms of doctrinal change in constitutional law. In particular, the Second Amendment, like no other constitutional provision, puts to the test one's commitment to original intent as a source of constitutional meaning.

Most contemporary scholars, whether they call themselves "originalists" or not, believe that constitutional meaning should be derived, at least in part, from the understandings of those who framed and ratified the constitutional text (or perhaps of the citizens whom those framers and ratifiers represented).(17) The revisionists' argument, which is straightforwardly originalist, poses an uncomfortable challenge to that belief. Their argument, in sum, is this: The framers of the Second Amendment intended for every American citizen to have the right to own guns, free from interference by the federal government; modern courts have approved federal gun control laws that the Founders would certainly have seen as violating the Amendment; accordingly, modern doctrine is illegitimate.

As I will explain below, the revisionists' account of the Founders' understanding of the Second Amendment is substantially accurate,(18) and so is their claim that modern doctrine departs from that understanding. Even if one does not accept the full sweep of the revisionists' historical claims, it is impossible to deny that the Founders intended the Second Amendment to constrain federal regulation of firearms to at least some degree. Modern doctrine reduces the Amendment to a virtual nullity.

I suspect that many scholars -- certainly after Levinson's article and Amar's book -- accept the revisionists' claim of a conflict between original intent and modern doctrine. Yet at the same time, many scholars must also find the Founders' vision hopelessly anachronistic, and modern doctrine intuitively correct -- and not just, as Levinson suggests, because they fear the policy consequences of the revisionists' argument.

After all, so much has changed since 1791. The Founders lived in a time when the threat of interstate warfare, or of the federal government using force to subdue dissident states, was real -- so real that it actually happened, although not for seventy years. The possibility of armed resistance to government force was also quite real, as demonstrated by Shays' Rebellion in Massachusetts shortly before the Constitution was written, and by the Whiskey Rebellion in Pennsylvania shortly after -- not to mention the great triumph over England. Further, widespread and uncontrolled gun ownership poses threats to public safety today undreamed of in 1791.(19)

The problem comes when it is time to put this changed-circumstances argument into doctrinal form. The Second Amendment has not been repealed; the authoritative text remains today what it was in 1791. Contemporary constitutional theory simply has no widely accepted methodology for understanding how the meaning of unamended constitutional text can change over time(20). As Laurence Tribe puts it in the latest edition of his treatise, changed circumstances do not mean "that the Second Amendment may properly be deemed wholly irrelevant today or that it may plausibly be construed to do no more than protect state defense forces against outright abolition by Congress. Although the factual predicates assumed by the framers of the Second Amendment no longer obtain, the same could be said with respect to other constitutional provisions."(21) Thus the Second Amendment is an embarrassment for Levinson and Tribe in the same way Brown v. Board of Education was an embarrassment for Herbert Wechsler,(22) and Roe v. Wade is an embarrassment for many scholars today -- the substance of contemporary doctrine seems impossible to square with the intentions of the framers of the relevant constitutional text.

But it is possible to accept both the revisionists' historical claims and the modern militia-focused jurisprudence -- without embarrassment. To do so, we have to understand the Second Amendment in its textual and temporal context. The first step is to broaden the inquiry beyond the Amendment itself; instead of the revisionists' "clausebound"(23) approach, we must appreciate how the Amendment is linked to other constitutional provisions dealing with military structure. The Amendment must be read in conjunction with those provisions to create a coherent whole.

Next, we must broaden the inquiry beyond the years 1787 to 1791. This step follows directly from the first; once we are committed to reading the Second Amendment in harmony with the remainder of the Constitution, we must recognize that changes in that remainder may affect our reading of the Second Amendment, if we are to maintain the harmony. And while the text of the Second Amendment has of course remained the same since its ratification, the Constitution that surrounds it has been dramatically amended -- most obviously by the Fourteenth Amendment. In other doctrinal areas, we recognize that the insertion into the Constitution of the Fourteenth Amendment has forced courts to reinterpret elements of the preexisting document.(24) I will argue below for a similar reinterpretation of the "right to keep and bear Arms."

These two steps, I believe, will yield a fuller and more satisfying account of the Second Amendment than either the revisionists or the judicial opinions they attack, while still vindicating the doctrinal conclusions that have been settled since Miller. Only by recognizing that the Second Amendment draws meaning...