Friday, June 27, 2008

Self-defense, the Second Amendment, and the Ninth Amendment

Sandy Levinson

One of the valuable points made in Saul Cornell's book on the Second Amendment is that self-defense was treated as a "common-law" right and not a "constitutional right" at the time of the Framing. So, as a matter of sheer historical accuracy, Scalia was probably wrong in suggesting that the Second Amendment had anything to do with safeguarding a right of self-defense. But, of course, there are other amendments to the Constitution, including the Ninth Amendment, which reminds us that there are rights beyond the ones enumerated in the first eight amendments. I strongly suspect that ordinary Americans in the late 18th century (and today) would believe that there is indeed a "natural right" to engage in self-defense, by any means necessary, against those who present threats to one's own life (to take the easiest case). It would never have occurred to them that a government founded on liberal principles (whether drawn from Hobbes or Locke) could limit this right.

As Cornell also shows, by the mid-19th century, most people had simply assimilated the traditional common-law right of self-defense into the Second Amendment, just as, today, "freedom of expression" under the First Amendment includes all sorts of speech, including blasphemy, that almost no one thought was protected in 1789. In any event, it is this assimilation that explains Charles Sumner's assumption that anti-slavery settlers in Kansas had a constitutionally protected right to weapons that they could use to defend themselves.

Unfortunately, Scalia is in the grips of an unusually limited form of originalism, unlike Randy Barnett's (and Jack's) far more sophisticated variety, and he is unwilling to recognize the legitimacy of judicially enforceable "fundamental values" (such as self-defense and the concomitant right to possess firearms in the home that are useful for self-defense). So we get an utterly tendentious reading of the history of the Second Amendment , which is, as I wrote yesterday, matched by an equally tendentious history by Justice Stevens.

And, incidentally, there is also the "privileges or immunities" clause of the Fourteenth Amendment to support the proposition that by 1868 the creators of the Second American Republic fully recognized an individual right to bear arms. Again, since Scalia basically doesn't want to recognize the relevance of the War and its transformative import, he prefers to ignore its legal consequences. It is sad that supporters of gun rights are stuck with Scalia's opinion instead of one that truly engages with the materials of American constitutionial history and theory and provides a much more plausible backing for the decision.

Update: I have, in paragraph three, changed the word "stupid" to "limited," which is more accurate and, I hope, less needlessly insulting. Also, to the extent that Randy Barnett, someone I like and respect a great deal, adopts a notion that the constitution has a fixed meaning based on original public expectations, I think it, too, is unduly limited; I much prefer Jack's more "dynamic" form of originalism, though I continue to reject the normative importance of originalism. I would, incidentally, think that barnett, who almost singlehandedly revived the ninth amendment as a serious subject of inquiry, would find attractive the possibility of lodging a "right to self-defense" (and to possession of requisite weapons, at least in one's home) in that amendment.


I believe the Heller majority simply held that Americans (less felons and the insane) enjoy a right to possess and carry ordinarily owned arms for lawful purposes, which include but are not limited to self defense.

Self defense has been a fixture of our common law and statutes and as such very likely qualifies as an unenumerated right under the Ninth Amendment. Thus, it is hard to argue that self defense is not a lawful purpose for which to possess and carry arms.

Levinson above: "Scalia is in the grips of an unusually stupid form of originalism, unlike Randy Barnett's (and Jack's) far more sophisticated variety."

Barnett in today's WSJ: "Justice Scalia's opinion is exemplary for the way it was reasoned. . . . [It] is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court." According to Barnett, Justice Stevens mistakenly adopts an original intent analysis, an approach “discredited years ago among constitutional law professors.” [Sorry, first time posting, don’t know how to hyperlink it]

I’m not familiar with Barnett’s work, but I assume his preference for “original public meaning” is based (at least in part) on the belief that, as a matter of constitutional theory, it is the understanding of the ratifiers of an amendment (i.e. the voting public) that counts, not the understanding of its drafters.

So the question for Professor Levinson (and others): Is Barnett correct in distinguishing the two Heller opinions as “good” (public meaning) and “bad” (intent) originalism? Can we plausibly distinguish between the two? Though Stevens does reference “the Framers” at several points, he also gives significant space to the state ratifying conventions, and one of the sharpest disagreements between the two opinions is over the (public) meaning of “bear arms.” Do the Heller opinions tell us anything about what kind of originalism we might prefer?

Amen Sandy!
I would think that everyone would agree that the Constitution (original or as amended) did not intend to set out all rights enjoyed by "the people." But because the "conservative" members of the court do not wish to give constitutional protection to such (Ninth Amendment) rights, it is forced to cram the rights it does want to protect into the existing list. This results in terrible history and terrible linquistics. The right to self-defense is a well-established commonlaw right, not explicitly in the consititution. If the court wishes to protect that right, under its historical methodology, it likely would have to protect certain "liberal" rights, such as privacy or abortion. Justice Breyer is, in my view, on the right track in attempting to move away from naive historical analysis and dictionary reading - and moving toward answering the question whether a particular governmental law unduly burdens the right (whether the right is explicit or implicit, living, dead, or evolving) at issue as compared to a legitimate governmental interest. (On that basis I would think that requiring that guns in the home be disassembled is unduly bursensome.)


Original public meaning is essentially the parol evidence rule applied to the Constitution as if it were a contract. Under this approach, the written provisions of the Constitution embody the complete meaning of the compact.

Ambiguity in the terms would be the only reason to consult the original intent of the drafters. However, original intent in the form of the opinions of individual drafters should generally be avoided because each individual drafter could and usually did have different understandings of what the Constitution meant. These various understandings can be cherry picked to support differing positions as the Heller dissents demonstrate.

Thus, only the original public meaning of the Constitution's single unchanging text can objectively interpret the Constitution.

Scalia discussed this approach in Heller:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation...

Before proceeding, however, we take issue with JUSTICE STEVENS’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post, at 27, n. 28. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.


I suspect Prof. Levinson is right about the Ninth and Fourteenth Amendments. I would also add that the keeping of a gun in the home is very plausibly within the right to privacy that has been recognized as a substantive due process right by the modern court. Seems to me just as important as the right to keep obscene magazines in your home or the right to have sex with the partner of your choice and without risking procreation or the right to speak a foreign language to your children or to keep your in-laws from visiting.

But in the end, you have an express constitutional provision (the Second Amendment) that at least very plausibly applies to this activity, so there's no reason not to use it rather than going to unenumerated rights.

Perhaps the contorted logic of these opinions might be avoided if the Court would recognize a few simple historical facts:

1. That Mr. Madison and his generation believed that the people had an inalienable right to organize themselves as a militia.

2. That in a republican form of government, because the people are sovereign, the government is dependent upon the militia; the militia is not dependent upon the government.

3. That the government could not exclude persons from the militia other than for the normal reasons for which a citizen may be deprived of his rights (i.e., by due process of law). There could be no "select militia".

4. That the right to a militia necessarily presupposes the right of every individual to be armed.

5. That the framers of the Fourteenth Amendment intended that the people's right to a militia would be protected by the Federal Government against infringement by the States. In particular, in every state, freed slaves were not to be excluded.

6. That despite the intent of the Second and Fourteenth Amendment, the militia was destroyed. It was destroyed deliberately and systematically, state by state, in an campaign directed by Thomas A. Scott, the President of the Pennsylvania Railroad, with the tacit connivance of the Hayes Administration, and replaced by the modern national guard, precisely the kind of "select militia" that the framers of both admendments had sought to prevent. With its decision in Presser v. Illinois, the Supreme Court sanctioned this destruction.

The history of the destruction of the American militia has, unfortunately, never been written. It would properly begin with the Great Strike of 1877, the closest thing to a "General Strike" that United States has ever experienced. The Strike began at the Baltimore & Ohio railroad in Martinsdale, West Virginia, and quickly spread to encompass virtually all the railroads, steel mills and coal mines in the Northeast and Midwest. At the behest of railroad executives the governors of several states called out the militia to break the strike, but the militia was hopelessly ineffective, in most cases refusing to side against the workers, who were, after all, their friends, relatives and neighbors. In some cases the militia was indistinguishable from the workers themselves, and they fought not the strikers but the Pinkertons whom the railroads had brought in. (Alan Pinkerton had been Scott's head of security at the Pennsylvania Railroad before the Civil War, and would, in 1878, write a popular account of the strike, Strikers, Communists, Tramps and Detectives, in which he placed the blame for the strike squarely on the "international communist conspiracy", a conspiracy based, of course, in Ireland.) Scott thus implored President Hayes to deploy the U.S. Army to break the strike. Hayes complied and the strike was finally broken. (Readers of C. Vann Woodward will recall that Hayes had been elected President as a result of "The Scott Plan", the compromise that Thomas Scott had engineered to resolve the disputed election of 1876.)

Following the Strike, Scott created the National Guard Association, an organization devoted to "Militia Reform", drafting model legislation to the replace the "universal service" militia with a select militia, comprising the "better class" of men, with an officer class comprised of leading business executives, and to ban any militia companies not so selected. Recognizing that the Second Amendment made it virtually impossible to effect this change at the Federal level, Scott focused on state legislatures, and succeeded in securing the passage of his model legislation in every state. The new state laws were blatantly in conflict with the Federal Militia Act (drafted by Henry Knox and James Madison in 1792), that required universal service, but neither the Hayes Administration nor any of its successors took legal action. (It might be noted that the War Department during this period was very much under the influence of Gen. Emory Upton'sMilitary Policy of the United States, which circulated within the department in manuscript form from 1863 until its publication in 1904, in which Upton argued that the reliance on the militia for the nation's defense kept the Army from its rightful place as an imperial power, competing with Britain, France and Germany for colonial conquests.)

Herman Presser was the son of German immigrants who had fled Germany after the failure of the 1848 revolution, and for whom the militia was an integral part of the notion of a Republican Form of Government. He was also a trade unionist, a member of the Cigar Makers International, whose vice-president, Samuel Gompers, would go on to found the American Federation of Labor. Presser was commander of a German-American militia unit in Chicago that refused to disband after the passage of the Illinois Militia Reform Act. Presser was prosecuted under the Act, and it was his conviction that the Supreme Court upheld in Presser v. Illinois. The Court's decision reflects a delicate balancing of constitutional principle and political expediency every bit as subtle as that in Bush v. Gore. And, interestingly, every single Justice of the Court that ruled on the Presser case was a former railroad lawyer.

Standard histories of the National Guard invariably note that throughout the late 19th Century and well into the 20th, the principle activity of the National Guard was "strike duty".

A curious footnote: The National Guard Association spun off a separate organization to promote firearms training and National Guard service by members of the "better class", and to promote the view that the Second Amendment was intended to protect only individual gun ownership, NOT a universal militia. This organization was called the "National Rifle Association" and is still in existence.

Another, fascinating, footnote: readers of Adam Smith's Wealth of Nations (if such people actually exist) may recall Smith's discussion of what he considered one of the most dangerous interventions of government in the free market: the chartering of limited liability corporations. Smith predicted, with remarkable prescience, that a nation that chartered limited liabililty corporations for general commercial purpose would so degrade the bargaining position of labor, that it would be necessary to replace its militia with a large standing army to subjugate the workers.

That the government could not exclude persons from the militia other than for the normal reasons for which a citizen may be deprived of his rights (i.e., by due process of law). There could be no "select militia".

This strikes me as a difficult proposition to defend in light of the restrictions on militia membership in the 1792 Act:

"... each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...."

That Mr. Madison and his generation believed that the people had an inalienable right to organize themselves as a militia.

"Inalienable"? That's overstating it a bit. See, for example, the restrictions above.

And while Madison's views are certainly entitled to respect, a great many of the Founding generation, particularly those who served in the army during the Revolution, had little but contempt for the militia.

That in a republican form of government, because the people are sovereign, the government is dependent upon the militia; the militia is not dependent upon the government.

No, both depend on the people. And as between militia and government, it is government which prevails. That's why Congress has delegated power over the militia and why the states exercised that power and more prior to the Constitution.

That the right to a militia necessarily presupposes the right of every individual to be armed.

More accurately, it presupposes the obligation of militia members to be armed. It was akin to a tax.

This is basically how I see things too. As to privacy, see the dissent in the federal appellate opinion Quilici v. Morton Grove, which dealt with handguns too.

I take Dilan's pt, and think the 2A in some fashion incorporates other constitutional sources of the right at issue, but as with the use of the due process clause, there is a round peg in square hole tendency here.

This leads to problematic results while a path suggested by this post could better inform the breadth of the rights at issue. Rights that benefit all sides in various cases.

This post also underlines the value of Harlan's point in Poe v. Ullman about liberty not being about specific points.

Joe, don't forget that Justice Harlan considered the right to keep and bear arms not just part of the rational continuum of liberty, but one of the specific guarantees provided in the Constitution, just like the freedom of speech, press, and religion; or the freedom from unreasonable searches and seizures.

stephen -- the National Rifle Association was incorporated in 1871, so your chronology would seem a bit off.

FLS, Harlan didn't specify what that right meant; likewise, as applied to the states, he viewed things through a 'due process' window, not the text of the BOR as such. See, e.g., as applied to obscenity banned by Congress and states. And, either way, the "liberty" at issue here is best seen as not just 2A in scope.

Somewhat off topic, I see some signs in the discussions here somewhat belittling the simplistic nature of Scalia or his faux originalism. Some of his rhetoric makes this justified. All the same, time and time again, his votes and opinions are not as simplistic here as compared to say Thomas.

"Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction."

He wrote that. As I noted elsewhere, Souter had it write in his recent concurring opinion in Giles: cites to founding history are relevant but not conclusive.

Anyways, maybe if Stevens or Souter signed on to the self defense rationale in a concurring opinion instead of all four signing on to an opinion suggesting the Framers didn't think the Constitution protected such a right (asinine), the conservative meme wouldn't be furthered. One Kennedy doesn't really sign on to anyway.

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