The Common Sense Second Amendment
By Stephen Menendian, Assistant Director, Haas Institute for a Fair and Inclusive Society,
A series of high-profile tragedies has raised new concerns over the violent potential of assault weapons and launched a national conversation about the availability of these guns and the need for background checks. Some gun-rights advocates now complain that these reasonable measures are nothing less than an attempt to “disarm” the American public. Can a reasonable person explain how prohibiting or regulating military-grade weaponry is an attempt to “disarm” the American people? That is tantamount to saying that a ban on foie gras is an attempt to starve the American people. Inevitably, the Second Amendment is raised in defense of these weapons and these practices.
When I was in law school the Second Amendment to the United States Constitution was not a topic of interest. Unlike the First or Fourteenth Amendments no courses were offered on it. Nor was it even an area of study in my Constitutional law class. In fact, my thirteen hundred page Constitutional law textbook refers to the Second Amendment once: the appendix containing the text of the Constitution itself. The reason for this conspicuous omission is simple. Until very recently there was very little case law on the Second Amendment, and what little there was had long been settled doctrine.
It occurred to me to ask what the Second Amendment actually says and what it means. As all good lawyers should, I began with the text:
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.
Forgive the pun, but this sentence blew me away. While this Amendment is popularly known for its protection of gun rights, the text of the sentence is surprisingly ambiguous. Not only are the words vague and imprecise, but the punctuation is confusing and ungrammatical, at least in terms of modern usage. There appears to be at least one extraneous comma and possibly two. The punctuation obscures rather than clarifies its meaning.
The logic of the sentence, however, is clear. The sentence has the form of an argument in propositional logic, with the first part constituting the premise, and the second part constituting the conclusion. The first part logically supports the right to bear arms. Given this relation, it is seems textually obvious that the right to bear arms is, as written, related to the necessity of a well-regulated Militia.
It seems that conservative jurists and gun-rights advocates prefer to read the two parts of the Amendment separately, as if there was no relation or only an incidental between the two. A natural reading of the sentence stands against such claims. The two parts of the sentence are tethered through propositional logic.
As a reaction to ‘penumbras’ and the emergence of Constitutional rights not found in the text of that document, textualism has become a popular tool of conservative jurists. Textualism is used, for example, to attack abortion rights. Yet, as the Second Amendment illustrates, textualism does not always yield conservative results. Applying the tenets of textualism, it difficult to conclude that the Second Amendment provides the broad individual right that many conservative jurists and gun-rights advocates now claim.
First, if the key tenet of textualism is to use the text to discern meaning, then the ambiguity in the term “right to bear arms” and the scope of that right should be ascertained by reference to any text which might illuminate its meaning. The first part of the sentence would and could serve that role, given its syntactical and logical relation.
Second, if another tenet of textualism is to read Constitutional text narrowly, then the scope of the “right to bear arms” should be read narrowly to have the most limited meaning. For example, even if the second part of the sentence guarantees an individual right to bear arms rather than a right associated with militias, the text does not suggest an unlimited individual right. A narrow reading of the text might well permit assault weapon prohibitions or regulations on some forms of gun ownership. After all, the right to bear arms does not necessarily imply the right to bear all arms. Some or even a few arms might satisfy a narrow reading of the text.
The Supreme Court enjoys the ultimate authority to interpret the Constitution. In two recent decisions, the Court has read the parts of the Amendment separately, concluding that the first part of the sentence is prefatory (which I think is hypocritical for an avowed textualist to conclude). The Court also concluded that the right to bear arms is an individual right. It has not yet addressed the full contours of that right, although Justice Scalia’s opinion in Heller asserts that the right is “not unlimited” and suggested, in dicta, that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.” It remains to be seen whether the Court will in fact uphold such a ban, and whether future iterations of the Court will interpret the Amendment differently. But what is clear is that progressive jurists have a strong textual Constitutional argument for reasonable gun-control measures.