This paper is about the meaning of what Justice Scalia calls a “prefatory clause.” Robert A. Levy, senior fellow and chairman of the Cato Institute’s board of directors, argues, and the majority agrees, that the first clause of the Second Amendment is prefatory and does not “limit or expand the grammatical meaning of the operative clause” granting America’s famous right to bear arms. We argue that this separation of the “prefatory” from the “operative” clause in the Second Amendment is seriously flawed.
Our analysis revolves around two central questions. The first is specific to the Heller case and considers whether an individual has the right to own a gun for self-defense regardless of whether one is supporting a “well ordered militia”. The second is general and addresses the influence which ideological interest groups have brought to bear on the Court’s jurisprudence through their careful framing of legal issues for the Court and in the public. Ultimately, we will show that Levy’s argument for separating individual rights from their political responsibilities threatens to undermine the preservation of those same rights in the long-term.
As it turns out, it is quite common for interest groups to sponsor Constitutional cases. Out of 306 highly significant cases, 163 of them (or 53%), were sponsored by interest groups of all shades of red and blue. In the case of Dick Heller, though the National Rifle Association (NRA) was not interested in supporting the case through trial, Heller found Robert Levy at the Cato Institute, a Libertarian oriented interest group (which nevertheless is known for rigorous non-partisan analyses of many public policy issues) who was willing to self-finance the lawsuit and try it himself with two other attorneys.
The reason that Levy took on this kind of responsibility was not because he was an avid gun rights advocate, but instead Mr. Levy tells us “Heller was about the constitution; guns merely provided the context.” This makes plain that what Levy and the Cato Institute are ultimately arguing for is not simply gun rights, but rather what he calls an “individualist” reading of the Bill of Rights, in particular. The ideology motivating this special interest is the defense of libertarianism’s intellectual foundation.
Levy set out to achieve this goal by scrupulously shaping every facet of the case. He and two other lawyers “filed the Heller lawsuit, picked the right time, identified the issues, selected the plaintiffs, served as their attorneys, chose the venue, decided on the legal strategy, wrote the briefs, argued in court, and won the case.” With each variable that Levy controlled, the more he was able to frame the Second Amendment in a light favorable to the interpretation advocated by the group. This is one of the chief powers of interest groups—leveraging personal and group expertise in the execution of a coherent litigation strategy focused on what appears to be a weak link in an opposing legal perspective. In this case, the contrast used to frame the central issue makes plain the power of ideological interest groups.
The positive frame that Levy provides is evident in his argument that “judges must have a proper respect for the document they are charged with enforcing, focusing on expansive individual liberties and a tightly constrained government of limited and enumerated powers.” The idea that “proper respect” for the Constitution demands a focus on “expansive individual liberties” in addition to a “tightly constrained government” places the debate on ground congenial to the plaintiffs. We will show that there is another viable interpretation of the Second Amendment, which preserves an individual’s right to use a gun for self-defense while also maintaining the meaning of both clauses of the Second Amendment.
District of Columbia et al. v. Heller
As a whole, the Second Amendment reads as follows: “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.” The question presented by Levy and team boils down to what constitutes the relationship between the service in a militia and the right to keep and bear arms. Does the Second Amendment limit arms to military uses? Is this an individual right? How are we to understand the meaning of this amendment today?
InDistrict of Columbia et al. v. Heller,
“[r]espondent Heller, a D.C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.”
Without going into the particulars of the case, it suffices for this paper to say that the Court held that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purpose, such as self-defense within the home.” The majority opinion, delivered by Justice Scalia, supports a reading of the Second Amendment which divides the text into two parts, a prefatory clause (ending with the word “state”) and its operative clause which follows. This is important because Justice Scalia et al. agreed with Levy’s rendering that the prefatory clause announces a purpose for the Amendment which, as we have already mentioned, does not limit or expand the grammatical meaning of the operative clause. Such a reading draws heavily from the denotative and connotative meanings associated with the words prefatory and operative: the former is rendered expendable as the latter is cast as inviolable. This language of separateness in turn enables readers to interpret away the preamble to the Second Amendment as grammatically unconnected and therefore as ultimately not joined to our understanding of an individual’s right to gun ownership.
Interestingly, Justice Scalia traces the foundation of an individual right to bear arms in the Constitution to a provision of the English Bill of Rights (1689) which declared “[t]hat the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” The majority of the Court claim that by giving Protestants the specific right to protect themselves after the Glorious Revolution of 1688, the Parliament recognized a fundamentally individual right to keep and bear arms for personal defense. Yet such an interpretation overlooks the fact that this provision first and foremost refers to a group of people and not to individual Protestants—this is important because the right to own arms is linked in this example to necessary obligations of being a Protestant in this case and upholding their political community through the expression of this codified right. Instead, Scalia references a founding-era document asserting that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence” without whispering even a word about what the preamble to the Second Amendment might mean for the right to gun ownership.
It is not with the ruling in general which this argument disagrees. Rather, it is the logic of the Court which focuses on protecting an individual right without balancing the right with its logical political obligation which threatens to further undermine the foundation of our form of government. We propose an alternate frame for reading the whole of the Second Amendment in which the preamble provides the interpretive context in which the main clause can be understood.
The key to this reading is that an individual right to possess defensive firearms is true by definition in the preamble. Since every right granted in the Constitution presumes the power to uphold that right, the well-being of the individual is presumed in “the security of a free state”. Therefore, while the guiding purpose of the weapons is for the good of the group, the application of the principle in practice is left up to individuals. For it is a constitutionally accepted principle that man never fully grants executive power to a governing authority to such an extent that one does not have the power to defend oneself when the power of the state is not present to uphold the law.
What we are saying here is that the individual right to gun ownership for self-defense, which Levy and the Cato Institute are arguing for, is implicit in the Constitution. There must be a power to uphold the life of the persons who must be able to use those weapons for the defense of the political whole. The problem is that if we read the Second Amendment the way Levy would have us, in which we begin first with the individual right, we do not by necessity have to reason to the responsibility of the citizen to uphold the regime with those same weapons. Whereas if you recognize the individual right within the compass of the “security of a free state,” we can preserve individual firearm rights while also maintaining the literal reading of the Second Amendment which explicitly joins the right to bear arms with a political obligation.
By interpreting the right to keep and bear arms as solely individual in nature, we take away any reference point for adjudging the limits of the right’s extension—for arguments of individual benefit can be conjured ad infinitum. The reference to a “well regulated Militia” at the beginning of the Amendment obviously refers to a form of military service, but perhaps more importantly, this introduction serves to highlight the guiding standard for the right’s interpretation: the health of the political whole. For at the time of the founding, the militia was thought of as the chief check against a standing army which was known as a primary threat to the stability of republics throughout history. Hence the guiding standard supporting the individual right to bear arms is the implied necessity to use those arms for the benefit of the whole community.
This modern separation of individual rights from public responsibility, as argued for by Levy and supported by the Court, can be partially explained by an argument carried out during the writing of the Constitution regarding whether a bill of rights should be joined to the Constitution in the first place. The Anti-Federalist refusal to ratify the Constitution without a bill of rights is evident in one of many essays written under the pseudonym of Brutus which refers to a bill of rights as the “grand security to the rights of the people.” In general, a bill of rights is seen as a needful check against the central government abusing its powers. Yet, interestingly, the Anti-Federalists recognized that all the powers in the Bill of Rights as written are contained within the articles of the Constitution itself yet the Anti-Federalists demanded that some of them be explicitly written out as a guard against denying the presence of the others. We must ask what is gained and lost by this re-writing of the people’s rights and liberties contained in the Constitution.
Alexander Hamilton responded to this question in the Federalist Papers by saying if we “declare that things shall not be done which there is no power to do” then this “affords a colorable pretext to claim more” liberties and rights than were granted in the first place. Hamilton makes a good point when he says that “the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.” Hence, the writing out of a separate bill of rights is shown to potentially weaken the constitutional fabric from which these rights are drawn. For from the perspective of the Founders, the Constitution is a bill of rights.
Certain arguments of ideological interest groups are endangering the connective tissue between our civil rights and our political responsibilities. Through practices such as litigating the Heller case, we as individuals move further away from the practices of participatory self-rule, as in the maintenance of militias. While our individual rights are upheld, we come to expect the goods without knowing precisely what is required of us to support maintain these rights. Outcomes such as these are to be expected when groups grind ideological axes, picking apparent weaknesses that are popular and then mounting media, litigation and lobbying campaigns. In the drive to be tastemakers for Libertarianism, these groups are willing to spend millions of dollars and years of effort to champion their agendas.
This modern interpretation of the Second Amendment as simply protecting individual gun ownership rights in turn contributes to the modern shift away from the guiding republican principle of the citizen-soldier which informed the Founders’ writing of the Amendment. It is safe to say that the Founders presumed that citizens would be habituated to civic obligation through the common practice of cultivating citizen-soldiers in the ever-present institution of the citizen militia. Yet by 1833 the eminent jurist Joseph Story noted that “…it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations.” And now, in 2012, the United States has no general practice of citizen militias and only a minority of citizens participates in military service. Hence the United States has lost one of the direct means for cultivating civic engagement.
Today we are witnessing the effects of arguing for liberties without thinking about what liberty itself contains within itself and what it demands. Liberty refers to the whole of our democratic experiment, whose roots and offshoots must be carefully thought into and discussed with others over the course of a lifetime in order to try and sufficiently understand what liberty is and how it can be realized and maintained. Whereas by focusing on our enumerated civil rights and liberties (to do and not to have done to oneself), we demand ever more individualism, but not necessarily the burdens of citizenship. Our reading of the Second Amendment shows that individual rights can be upheld while also supporting the habits of citizenship which are explicitly connected to our right to use a gun for self-defense and the support of the American republic.
We the authors of From Battleground to Common Ground: Reclaiming America’s Political Narrative laud the public attention devoted to the #INDIVISIBLE theme as of late. In particular we would like to thank Howard Schultz, CEO of Starbucks, for using his public influence to remind Americans that “the principles that bind us together vastly outweigh what keeps us apart” (http://www.starbucks.com/indivisible). We wish to lend our voices to the discussion of the problems and promise of this principle of unity and devote our hands to the work of remaking the communities in which we live.
Let’s move politics in America off of the battleground and on to common ground:
Kudos to Starbucks for the #indivisible conversation http://indivisible.tumblr.com/
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