August 5, 2016
A great deal of nonsense has been written and spoken about the Second Amendment to the U.S. Constitution. That has been particularly true after each of the gun-related massacres that regularly occur. It has been generally true since the Supreme Court decided the case of the District of Columbia v Heller, on June 26, 2008, wherein a 5-4 majority of the Court created for the first time in the 217 year history of the Amendment an individual right to own a handgun for defense within the home. I do mean “created” for the language and history of the Amendment do not remotely support the Court’s decision. The purpose of this piece is to give readers who are not lawyers sufficient information to understand the Heller opinion. I encourage anyone who wants insight in to the Court’s decision to read it. Consider reading it as you read this article. The “slip” opinion was issued by the Court at the time the case was decided. Later, the opinion was organized and collated into reporter systems (Supreme Court Reports, U.S. Reports) which are not as readily accessible online, but are available in law libraries or by subscription. The slip opinion has its own numbering system: Justice Antonin Scalia’s majority opinion is pages 1-64; it is followed by Justice Harry Stevens’ and Justice Steven Breyer’s dissenting opinions, each separately numbered.
BASIC BACKGROUND:
The U.S. Constitution was ratified in 1787. It did not contain a bill of rights. The Bill of Rights, which consists of the first 10 Amendments to the Constitution, was ratified in 1791. The entire Second Amendment reads as follows:
“ 2. 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.”
James Madison was the primary author of the Second Amendment, which became law upon ratification by the required number of States on December 15, 1791.
DISREGARD OF LANGUAGE IN THE AMENDMENT
Justice Scalia’s dismantling of the language the framers/ratifiers chose and his reconstruction with language he prefers begins with him announcing that the single sentence that is the Second Amendment is to be divided into two clauses: the prefatory clause, which is the first 13 words (up to the second comma); and the operative clause, the last 14 words. He engages in some remarkable contortions over the first 5 pages of his opinion to relegate the prefatory clause to meaninglessness and to find, and to additionally create, meaning only in the operative clause: “the right of the people to keep and bear Arms, shall not be infringed.” He states that the prefatory clause “does not limit” the operative clause (4). It is the operative clause which needs to be construed. He reads the first part of the sentence out of existence as though it were some language that fell from the sky and accidently landed on the page. His is a rather novel approach to reading and interpreting the English language, new to essentially anyone with a moderate facility in reading, writing or conversing in the English language. A practical illustration: suppose I said to my daughter a few years ago when she was still in high school: “Getting home by eleven being necessary for your safety, you can have the car.” Despite some awkwardness in that sentence (as in the Second Amendment), virtually everyone would understand it to mean that I was telling my daughter she could borrow the car for the evening if she was home by eleven. Applying Justice Scalia’s tortured parsing to this one sentence, my daughter the next morning would tell me that “you can have the car” is the operative clause; that the operative clause is all we need to look at; the prefatory clause cannot limit it; and therefore she is the owner of the car because I gave it to her when I said “you can have the car.” Of course, neither she at age 16, nor any reasonable human being would argue that. However, that verbal reconstructive surgery is what Justice Scalia performed on the Second Amendment. People do not talk like that. People do not write like that. People do not think like that. That was true in 1791 and is true today.
In fact, if there is one thing about the Second Amendment that is certain, it is that the framers/ratifiers of it did not intend the amendment to read, “The right of the people to keep and bear arms shall not be infringed.” If they intended that, they would have written that. Madison and the ratifiers were rather skilled with the English language. They understood that words have meaning and that the second part of a sentence needs to be read in connection with the first.
INSERTION OF LANGUAGE IN TO THE AMENDMENT
Justice Antonin Scalia
In his exuberance, Justice Scalia abandons, in a way visible to anyone who cares to read closely, rational inquiry. Consider his reasoning: Scalia points out, as do the dissenting justices, that the Pennsylvania and Vermont state Constitutions included provisions that stated, “That the people have a right to bear arms for the defense of themselves and the state…” (28-29). The States of Pennsylvania and Vermont adopted those provisions before the Second Amendment was ratified. Thus, language clearly establishing a right to bear arms for the defense of self was available to the framers and ratifiers of the Second Amendment. In crafting the Second Amendment, the framers had before them language that specified a right to bear Arms for self-defense. They did not include such language. Hence, the rational conclusion is that the framers/ratifiers chose against establishing a constitutional right to arms for self-defense. However, in the greatest act of judicial magic in the history of American jurisprudence, Justice Scalia, 217 years after the ratification of the Second Amendment, asserts that the Second Amendment encompasses a right to possess “handguns held and used for self-defense in the home” (64). Justice Scalia inserted the rejected concept of “defense” into the Amendment and added a new concept of defense within the home. Thus, in the Orwellian world the majority created: if the framers chose to mention a right to bear arms for self-defense, that would be proof the Amendment included it. If the framers chose not to mention a right to self-defense, that was still proof the Amendment included it.
ADOPTION OF A NEW PROVISION GOVERNING INTERPRETATION
Justice Scalia approvingly quotes language that does not appear in the Constitution, “…the right to self-defense is the first law of Nature”(33). He then interprets the Second Amendment in light of his assumption about the first law of nature. He thereby creates his own constitutional provision that hovers somewhere in the ether above the District of Columbia. And later he asserts, “…the inherent right to self-defense has been central to the Second Amendment right” (56). So, from Justice Scalia’s perspective, the framers/ratifiers somehow neglected to include the “central” component of the Second Amendment when they wrote and ratified it. In fact, they neglected to put it anywhere in the Constitution. When in human history has a group of bright, articulate individuals convened to adopt a constitutional provision they hoped would govern/define/guide their country for decades, if not centuries, and left out the “central” component of that provision? The answer is “never,” other than in creative imaginations driven by ideology. The opinion is an attempted, but inadequate, intellectual disguise to create a right that for two centuries did not exist. It discredits everyone who signed on to it, and further discredits the Court as an institution.
SCOPE OF THE AMENDMENT
The Second Amendment was aimed at facilitating, when necessary, the calling up of a well-regulated militia, thus minimizing the possibility of the creation of a standing army. The framers/ratifiers feared a standing army because it could be turned against the people by the government, as King George had done. The Second Amendment was created to protect the people from the government’s army. The framers wanted the people, the potential Militia, to have the ability to be armed so that they could quickly be called into service if there were a need for military action on behalf of the nation. The existence of the armed Militia could avoid the need for a standing army. That was the intended scope of the Amendment. However, within 20 years of ratification of the Second Amendment, certainly since at least the War of 1812, the United States has had a standing army. Thus, the rationale for the existence of the Second Amendment ceased to have application over 200 years ago.
1939 Supreme Court Justices
A 1939 Supreme Court case, US v Miller, adopted a clear, common sense understanding of the actual language of the Amendment:
“The Constitution as originally adopted granted to the Congress power ‘to provide for calling forth the Militia to execute the Laws of the Union …. ‘ With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.”
The Miller case was an 8-0 decision clearly upholding Congress’ ability to prohibit ownership of a specific class of firearms, in that case shotguns with barrels less than 18 inches. The opinion approvingly referenced Adam Smith’s discussion of the distinction between the Militia and a standing army:
It is there said: ‘Men of republican principles have been jealous of a standing army as dangerous to liberty.’ ‘In a militia, the character of labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force. (Wealth of Nations)
Thomas Jefferson and others involved in the development of the Constitution in 1787 were concerned about the absence of a bill of rights. On December 20, 1787, after ratification of the Constitution but before ratification of the Bill of Rights, Jefferson wrote to Madison and listed many things he found promising about the Constitution, but then went on to say:
“I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of habeas corpus laws, and trials by jury in all matters ….” (emphasis added)
James Madison and Thomas Jefferson
Please note that the first two rights Jefferson wished protected, “freedom of religion” and “freedom of the press” are the core of the First Amendment. Also note that Jefferson’s wish for “protection from standing armies” was what the Supreme Court in Miller held was the aim of the Second Amendment. Thus, Jefferson’s wish for protection against standing armies was consistent with the language Madison chose for arming the Militia in the Second Amendment, and with the unanimous interpretation of the Supreme Court in 1939. After 1939, Second Amendment jurisprudence was relatively quiet. There were few cases making their way to the Supreme Court, understandable in light of the Court’s clarity and unanimity in upholding legislative authority to ban entire classes of guns. The law was largely settled.
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I do not think it is useful to do semi-psychological evaluations of Justice Scalia or the other four Justices, all Republican appointees, who arrived at a decision so far beyond the language and history of the Second Amendment. However, the Heller majority’s reading “the right to self-defense is the first law of Nature” into the Second Amendment offers insight into a larger issue arising from differing conceptions of humanity itself. I think there is overwhelming evidence that the first law of Nature is the impulse of essentially every living thing on the planet to survive—not just individually but as a species. Humans, animals, plants, amoeba, paramecium, every species is designed toward that end, whatever one may believe about the origin of that design: God, nature, natural selection, evolution, etc. Furthering the grand impulse toward survival involves many skills and attributes: cooperation, adaptation, flexibility, nurturing the young, effective communication, parental sacrifice and sometimes defense of self or others. Defense of self is only a component of the impulse of humans to survive. Whether I am right about that or Justice Scalia is right about that, neither of us gets to simply write our view into the Constitution. However, Justice Scalia adopts a view of human nature which he is willing to impose on the nation based on his narrow, but I suspect deeply felt, “first law of nature.” He is wrong, wrong in a way that resonates throughout the membership and especially the leadership of the National Rifle Association. As NRA Executive Director Wayne LaPierre stated in addressing the 2013 NRA Annual Convention:
“There is nothing more good and right and normal than an honest American citizen owning a firearm to defend himself or protect her family. … And we will never surrender our guns—never!”
The elevation of gun ownership for defense to the highest good is ever-present in NRA literature. However, this preoccupation with self-defense carries with it an underlying assumption that much or all of the rest of humanity is on the offense—being ready to kill, steal, rape, pillage, and plunder. The NRA position and that of the Heller majority reveals a fundamental fear-based assumption about the rest of the human race that overwhelms the capacity for rational reflection. The Heller majority implants that assumption into the Second Amendment. It grossly discounts the positive aspects and attributes of human interaction: love, a sense of community, potential for cooperation, the values explicit and implicit in Christ’s teachings and the values embraced within virtually all major religions, as well as within informed secular humanism; making them subservient to their version of the first law of nature. As I am writing about competing notions of the first law of nature, I ask myself, “Why am I doing this?” The subject is not mentioned in the Constitution and should not be at the center of a discussion of a Constitutional law issue. The answer is because Justice Scalia read it in to the Second Amendment as part of his justification for an unjustifiable decision. So we are left to deal with it.
For NRA leaders and the Heller 5 person majority, belief in and commitment to guns precede and transcend their concept of the Constitution. They appear unable to conceive of a Constitution without guns at the center of it.
Justice Scalia has written and spoken eloquently about the need for Judges to approach the cases before them free from their own preconceptions and worldview. Their job is to interpret, not create law. His dissent in the 1992 case Planned Parenthood v Casey may be the most thorough and persuasive statement of that judicial requirement I have ever read. His inability or unwillingness to apply what he stated so forcefully to his own decision-making is an extraordinary contrast. My sense is that his ideological zeal defeated the calm and considered judgement required of a Justice. The reader may find Justice Scalia’s interview in the October 7, 2013 issue of the New York Magazine enlightening, as he describes the sources he goes to for information about the world and human affairs. He relies on (Rupert Murdoch’s) Wall Street Journal and (Reverend Sun Myung Moon’s) Washington Times for written information; and for broadcast news, on “the talk guys … on the radio”, mentioning only Bill Bennett by name. His statements reflect that he is intellectually isolated, limiting himself to a narrow slice of the political and social spectrums.
There is no inherent constitutional impediment to legally prohibiting or strongly regulating gun ownership or possession. But because five Justices have said otherwise with regard to handgun ownership in the home, the Constitution has been remade. Therefore the nation must, for the time being, play the game that there cannot be an “absolute prohibition of handguns held and used for self-defense in the home” (64). However, that is the scope of the Heller ruling, leaving open possible regulation of all other kinds of guns in all other places.
Despite their radical revision, the Heller majority comments that States may require registration of firearms and “prohibition in sensitive places such as schools and government buildings” (54). Yet, even those possibilities are dismissed by the NRA, many politicians, and the right wing talk show hosts who dominate the radio airwaves.
At such time as there are at least 5 Justices on the Supreme Court who are willing to be guided by the words and history of the Second Amendment rather than by personal ideology, the Heller opinion will assume its rightful place in the judicial junk pile. Legislators will then be able to fashion policy based upon the safety of the people they represent without deference to the second half of a rewritten, single sentence whose intended relevance ended over two centuries ago.
Salus Populi 