Second Amendment Symposium

  • May 9, 2014
    Guest Post

    by Mark R. Killenbeck, Wylie H. Davis Distinguished Professor, University of Arkansas

    * May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    One of my teaching mantras is “simplicity is bad, complexity is good.”  Students want me to make things simple. I resist, telling them that in a black-letter-rule, one-two-three world, there would be no need for their services. The Supreme Court’s current take on the Second Amendment should accordingly be a source of great comfort, a perfect example of complexity given a text replete with “prefatory” and “operative” clauses that, taken together, mean that it is about more than a “well-regulated militia.”  Rather, as Justice Antonin Scalia informed us in District of Columbia v. Heller, the amendment is simply one expression of an “ancient [individual] right” that embraces both the militias of which it speaks and “self-defense and hunting.” It is also, per McDonald v. City of Chicago, “fundamental to our scheme of ordered liberty,” such that we cannot possibly envision a “civilized system” that does “not accord th[is] particular protection.”

    It was not always so. Rather, when the unanimous holding in United States v. Miller provided the analytic matrix, the “obvious purpose” of an amendment that spoke solely of militias was to “render possible the effectiveness of such forces.” Read together with the militia clauses in Article I, section 8, it facilitated occasional and effective recourse to state militias that could be “called forth” and “employed in the Service of the United States.” That right was, pace Heller, individual, tied to the availability of armed and trained individuals who were “citizens primarily, soldiers [only] on occasion.” But, at least as a matter of protection from the federal government, the goal was not to secure the “right to keep and bear arms for [all] lawful purposes, most notably for self-defense within the home.”

  • May 8, 2014
    Guest Post

    by Carol Berkin, Presidential Professor American Colonial and Revolutionary History, Women’s History, Baruch College, City University of New York

    *May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Let me make my small contribution to this discussion as an 18th century historian. In doing research for my new book, The Bill of Rights: Securing America’s Liberties, I read the complete records of the House debates on Madison’s proposed amendments during the first session in 1789. I also read the personal correspondence of members of the House and Senate on the subject. The Senate held closed sessions that term and so their discussions were not available, but journals such as Maclay’s and private letters fill in some of the disagreements and debated issues within the Senate.

    A little background first. My apologies if this is familiar to you all.

    In the 18th century, political loyalty was primarily provincial; that is, most men thought of themselves as citizens of their states, as Virginians, New Yorkers, Georgians, not as Americans. The men at the Constitutional convention were, in fact, particularly distinguished by their inclination, as Alexander Hamilton put it, to “think continentally.”

  • May 7, 2014
    Guest Post
    by Darrell A. H. Miller, Professor of Law, Duke University
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Earlier this week, the Supreme Court denied certiorari in Drake v. Jerejian. The question there was “[w]hether the Second Amendment secures a right to carry handguns outside the home for self-defense.” When the Court does consider this issue, and if it decides the case according to conservative judicial principles, the answer should be no. Whether it will reach this conclusion is another matter.

    Although Clayton Cramer, David Kopel and this author have used analogies to obscenity in disparate ways to illuminate the right to keep and bear arms, a home-bound Second Amendment doesn’t depend on these analogies. Instead, a home-bound Second Amendment follows from some traditionally conservative propositions: courts should define rights at the narrowest level of historical consensus; courts should not intervene when the political branches are working properly; and courts are institutionally ill-equipped to deal with empirical data and should defer to other institutions in data-driven disputes.
  • May 7, 2014
    Guest Post
    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr.  Centennial Chair, Professor of Government, The University of Texas School of Law
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    So how should the Second Amendment be interpreted? There are at least two quite different ways of approaching this question. The first involves adopting the position of the detached lawyer, perhaps (one version) of an ideal judge, whose loyalty is only to the “best theory” of the Constitution and, therefore, of the Second Amendment that is part of it. My own inclination is to be skeptical of approaches, whether identified with Ronald Dworkin or Antonin Scalia, that claim to have discerned the “one true meaning” of what I have come to call “the Constitution of Conversation,” i.e., those parts of the Constitution’s text that are sufficiently indeterminate to invite perhaps endless (and often acrimonious) conversation as to how they should be given more specific meaning.

    For me, the Second Amendment is easily within the “Constitution of Conversation.” As I wrote in the Yale Law Journal some quarter of a century ago, in “The Embarrassing Second Amendment,” one must decide, at the outset, about the seriousness with which one takes the notion of “civic republicanism” and the possibility of an aroused citizenry, speaking in the name of “We the People,” taking up arms to resist oppressive government. As I wrote in that article, the most interesting bumper sticker is not “when guns are outlawed, only criminals will have guns,” but, instead, “when guns are outlawed, only the government will have guns.”
  • May 6, 2014
    Guest Post
    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.
     
    Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)