December 20, 2004
Private: OLC Opinion Claims That 2nd Amendment Creates An Individual Right
A reader e-mailed the following observations about the OLC's new opinion:
In an opinion recently posted on the web, the Office of Legal Counsel concluded that the Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.
This opinion relies heavily on William Blackstone's Commentaries on the Laws of England, which the opinion refers to as "the leading legal authority in America at the Founding . . ." The opinion refers to or cites Blackstone dozens of times in the opinion. Most of those citations are on substantive issues regarding the rights of Englishmen at the time. However, the opinion also cites Blackstone on an interpretive issue-i.e. regarding how a particular clause should be interpreted.
In section II.C., the opinion discusses the first 13 words of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State . . ." The opinion cited various authorities regarding the proper interpretation of a "preface." One of those authorities was Blackstone: "Blackstone summed up this understanding in explaining that, although the words of an enacting clause were 'generally to be understood in their usual and most known signification,' yet if its words, after due analysis, were 'still dubious' or 'ambiguous, equivocal, or intricate,' one might look to the context, which included 'the proeme, or preamble, [which] is often called in to help the construction of an act of parliament.' (at n.73) (citing 1 Blackstone at *59-60).
I am writing to suggest that the OLC opinion does not address another interpretive principle that is cited in Blackstone's Commentaries that is at least arguably relevant to the interpretation of the first 13 words of the amendment.
The citation from Blackstone regarding the "proeme, or preamble" is part of a larger section that consists of "observations concerning the interpretation of laws." 1 Blackstone at *58. One of those "observations" was: "BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it." 1 Blackstone at *61.
Blackstone refers to this "when the reason ceases, the law ought to cease" principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting "But here the reasons of the general rule cease, and 'cessante ratione cessat et ipsa lex' [The reason of the law ceasing, the law itself also ceases]"), 3 Blackstone at *219 (discussing the law of nuisance, and noting "But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water."), 4 Blackstone at *3 (noting that some aspects of Britain's criminal law "seem to want revision and amendment" and explaining that "These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . "), 4 Blackstone at *81 (discussing the law of treason, and noting that the "plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . ."), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting "But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex."). Some of these seem to refer to common-law decisionmaking, but he also applies this principle to statutes.
The OLC opinion does not appear to discuss this principle. It is at least arguable that the "cause/reason" for the Second Amendment was the "well-regulated militia." If so, then it could be argued that when that reason ceased, the law ought likewise to cease with it. Of course, it could also be argued that the "cause/reason" was broader than the militia. But this interpretive principle seems like something that would be logical to address in an opinion that relies so heavily on Blackstone.