Groundhog Year Part III: In Plain Sight

In Eric Black’s three part series about the Second Amendment a few weeks back (part 1, 2 and 3), Black – writing in the MInnPost, which operates in part through the generosity of a big grant from the anti-gun zealot Joyce Foundation – notes the not-exactly-earthshaking conclusion that the Second Amendment can confuse people.

And the underlying themes of his series were – as I read ’em – that the Second Amendment is:

1. Linguistically and legally inscrutable
2. Confusing
3. Obsolete.

We’ll address the first two of these today.

Black notes the definitions that vex a surface-level reading of the Second Amendment:

What’s a militia? If you aren’t in a militia, does this have anything to do with you? Or perhaps (and this is roughly the current Supreme Court interpretation) what if “militia” is just an 18th century word for all the able-bodied males in a state who had better have access to arms in case their state needs them to secure its freedom…But if “militia” doesn’t refer to an organized group, what’s “well-regulated” doing in there?

It’s a good question.  But it’s hardly a new one.

For much of US history, it didn’t need an answer – since hardly anyone questioned the notion that Militia meant…

…both.  The Militia Act of 1903 codified what had been followed in practice since the Militia Act of 1792; the the Militia was composed of…:

• The Organized Militia – the National Guard and the Naval Militia, and…
• the Unorganized Militia – every able-bodied male between 17 and 45 years of age who wasn’t a member of the Organized Militia.  In other words, everyone.  Including Eric Black.

But even answering “it’s in the law!” misses the most important point.

The answer to the question “What does the Second Amendment really mean?” started taking its currently definitive shape with the publication, about 20 years ago, of “The Embarassing Second Amendment“, by Dr. Sanford Levinson.  At the time, Levinson was a professor at the U of Texas School of Law; the article appeared in the Yale Law Review.

Levinson was and is an arch-liberal with portfolio, who described himself then and now as a card-carrying ACLU member who was very uncomfortable around the notion of civilians owning guns.   He’s no mossy originalist; he’s called for a Second Constitutional Convention.

The article – about 80 pages, half of them footnotes – is a highly detailed analyis of the textual, historical, structural, doctrinal, prudential and ethical history of the Second Amendment, its related case law, and analysis of all the above.

And the conclusion was all wrapped up in the title; Levinson, unabashed anti-gun liberal that he is, is embarassed to conclude that the “NRA” was right, and the gun-grabbers were wrong.

It came out a solid decade and a half before the Heller decision, but it was one of the key waypoints on the path between the silly, collectivist post-Miller-decision miasma and the Court’s curent stance on the issue.  It was the argument that started even arch-liberal Laurence Tribe on his path from dismissing the originalist interpretation (as Levinson notes in the article) to acceptance that the Amendment is in fact a right “of the people”.

The road to Heller and McDonald started with Levinson’s article.

And he started from the same question Eric Black did: what does “well-regulated militia” mean?

In textual terms – the strict reading of the words?  Not much help there: “The text at best provides only a starting point for a conversation. In this specific instance, it does not come close to resolving the questions posed by federal regulation of arms. Even if we accept the preamble as significant, we must still try to figure out what might be suggested by guaranteeing to “the people the right to keep and bear arms;” moreover, as we shall see presently, even the preamble presents unexpected difficulties in interpretation.”

But in historical terms?   Things are clearer:

Consider once more the preamble and its reference to the importance of a well-regulated militia. Is the meaning of the term obvious? Perhaps we should make some effort to find out what the term “militia” meant to 18th century readers and writers, rather than assume that it refers only to Dan Quayle’s Indiana National Guard and the like. By no means am I arguing that the discovery of that meaning is dispositive as to the general meaning of the Constitution for us today. But it seems foolhardy to be entirely uninterested in the historical philology behind the Second Amendment.

I, for one, have been persuaded that the term “militia” did not have the limited reference that Professor Cress and many modern legal analysts assign to it. There is strong evidence that “militia” refers to all of the people, or least all of those treated as full citizens of the community. Consider, for example, the question asked by George Mason, one of the Virginians who refused to sign the Constitution because of its lack of a Bill of Rights: “Who are the militia? They consist now of the whole people.” 48 Similarly, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a “militia, when properly formed, [as] in fact the people themselves.” 49 We have, of course, moved now from text to history. And this history is most interesting, especially when we look at the development of notions of popular sovereignty. It has become almost a cliche of contemporary American historiography to link the development of American political thought, including its constitutional aspects, to republican thought in England, the “country” critique of the powerful “court” centered in London.

One of the school’s most important writers, of course, was James Harrington, who not only was in influential at the time but also has recently been given a certain pride of place by one of the most prominent of contemporary “neo-republicans,” Professor Frank Michelman. 50 One historian describes Harrington as having made “the most significant contribution to English libertarian attitudes toward arms, the individual, and society.” 51 He was a central figure in the development of the ideas of popular sovereignty and republicanism. 52 For Harrington, preservation of republican liberty requires independence, which rests primarily on possession of adequate property to make men free from coercion by employers or landlords. But widespread ownership of land is not sufficient. These independent yeoman would also bear arms. As Professor Morgan puts it, “[T]hese independent yeoman, armed and embodied in a militia, are also a popular government’s best protection against its enemies, whether they be aggressive foreign monarchs or scheming demagogues within the nation itself.” 53

Which gets us into the third of Black’s conclusions, which we’ll come back to later in the series.

As to the notion that the “Right of the people to keep and bear arms” refers to a National Guard that the founding fathers didn’t envision:

Consider that the Fourth Amendment protects “[t]he right of he people to be secure in their persons,” or that the First Amendment refers to the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It is difficult to know how one might plausibly read the Fourth Amendment as other than a protection of individual rights, and it would approach the frivolous to read the assembly and petition clause as referring only to the right of state legislators to meet and pass a remonstrance directed to Congress or the President against some government act. The Tenth Amendment is trickier, though it does explicitly differentiate between “state” and “the people” in terms of retained rights. 42 Concededly, it would be possible to read the Tenth Amendment as suggesting only an ultimate right revolution by the collective people should the “states” stray too far from their designated role of protecting the rights of the people. This reading follows directly from the social contract theory of the state.( But, of course, many of these rights are held by individuals.)

(If you haven’t read Levinson’s entire piece – you need to.  It’s one of the most politically influential law-review articles in recent history – and it’s not a bad read, either).

As to “well-regulated?”    Levinson doesn’t address it directly – in the parlance of the 1790s, it meant “can do the job”, or “can hit their targets”, a definition that’s changed in the past two-odd centuries -because it’s irrelevant.  It’s a right of the people, necessary to the preservation of a free state.  It’s a secondary question at most, in the lee of the real question “what is a right of the people?”.

As noted in Heller, it’s not an absolute right; states can ensure that people who aren’t good citizens, felons and the like, don’t get guns.  They can legislate the types of guns, within reason; the whole “can you get a flamethrower or a cannon” argument is a strawman, although it’s worth arguing on its own merits (if I’m a law-abiding schnook with a .380 or a shotgun, why wouldn’t I be with a howitzer or a bomb?).

The “What does the Second Amendment Really Mean?” argument – like the “The Second Amendment existed to protect slavery!” argument we dispensed with a few months back – is a manufactured controversy, a re-hashing of questions that were answered literally decades ago among those who pay attention to the issue.

But the gun control movement rarely makes its appeals to people who pay attention to the issue.

Up next – probably Tuesday – the notion that the Second Amendment is just plain obsolete.