Balkinization: Is the Second Amendment a Rule or a Principle?

Is the Second Amendment a Rule or a Principle?

In my previous discussion of the Second Amendment I've assumed that the right to bear arms is a principle: that is, a norm that does not determine the scope of its extension and that can be balanced against other considerations, like public safety. It seems to me to be similar in this respect to the First Amendment's "freedom of speech," or the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

In a recent post, Larry Solum raises the intriguing possibility that the Second Amendment, unlike the First, does not state a principle (i.e.,the free speech principle) but a rule:

But the wording of the two clauses may be relevantly different. "Freedom of speech" does not specify content for a legal right: there is "freedom" and it concerns (is "of") speech. The Second Amendment is (arguably) different. The term is "right" and not freedom, and it is the "right to keep and bear arms" where the phrase "to keep and bear arms" seems to provide content for a legal rule--the rule identified by Justice Scalia in Heller. Of course, the rule is not fully specified--there is vagueness with respect to what counts as infringement, what the outer limits of the right are, what is an arm, what is keeping, what is bearing, etc. But unlike the freedom of speech, the Second Amendment may provide a legal rule rather than a principle in Balkin's sense.

If you wonder why anyone would care about this question (is it a rule or is it a principle?), it goes to how much room there is for regulating the right to keep and bear arms and to whether the text allows for exceptions.

I begin by noting that even if Larry is correct that the Second Amendment is a rule rather than a principle, it still does not get Scalia where he wants to go: he wants to show that the common law right of self-defense was constitutionalized in 1791.

Assume that there is a rule that we should not infringe "the right to keep and bear arms." But the original meaning of the text does not tell us which "right" we are talking about, even if we assume that right is exercised by keeping and bearing arms. There are at least three different "rights" that the text could refer to, as outlined in my previous post, a right to participate in organized militias, a right to participate in unorganized militias (to deter or overthrow tyrannical government), and a right to self-defense. We would have to look to enactment history to resolve the ambiguity in the word "right." Once again, as my previous post explained, the history is pretty clear that the framers and ratifiers were speaking about the first right, and probably also the second, but it is not at all clear that they were speaking about the third-- the common law right of self-defense. (The latter assumption-- that a common law right was being written into the Constitution is, as I've noted before, a product of the 19th century). So if Scalia is really committed to the original meaning of the text, he can't justify Heller on the basis of original meaning alone. He must engage in (permissible) constitutional construction.

In any case, I think there's a larger problem with calling the Second Amendment a rule rather than a principle. Larry's suggestion is that if we are presented with a rule (as opposed to a principle), each term in the rule must have a large core of fixed application surrounded by a narrower penumbra of potential vagueness. As Larry says "Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant, except to the extent that vagueness is the rule requires the creation of some subsidiary legal norm to resolve the vagueness. In Hart's terms, `rules' have large cores and narrow penumbras."

Consider how this would work with the Second Amendment. Can we identify a core meaning and a penumbra for the terms "infringe," "and "arms" that explains the operation of the clause? Scalia suggests that banning machine guns (and other dangerous weapons) does not infringe the right to keep and bear arms. Most people would probably agree. If that is so, then it must be either because a total ban of a weapon is not an "infringement," or because machine guns are not "arms." But I would have thought that these are core examples of the words "infringe" and "arms," respectively. If we treat the Second Amendment as a rule, then it's hard to see how we can avoid this result, given the original meaning. (Remember the text says nothing about any distinction between especially dangerous and not especially dangerous arms. It just says "arms.").

If we stop thinking about the Second Amendment as a rule and start thinking about it as a principle, however, Scalia's conclusion isn't at all strange. Indeed, it makes perfect sense. If "the right to keep and bear arms" is a principle, it does not determine the scope of its own extension, and it can be balanced against other considerations, such as public safety.

Moreover, suppose that "the right to keep and bear arms" is a civic republican principle that involves not merely an individual right (in the modern liberal sense) but also common duties to defend the state through an organized or unorganized militia. In that case, arms that allow a single individual to inflict enormous damage do not further the purposes of the principle, because they do not encourage collective action.

(An aside: One of the weakest features of Scalia's opinion is that it largely disregards the civic republican origins of the right and treats it as a modern liberal individualist right. This is another example of Scalia's anachronistic use of history.)

Either way, treating the Second Amendment as a principle (not a rule) makes the most of sense of how we could (and should) enforce it today. And there is no evidence I have seen that it was intended to be a rule in Larry's sense. Indeed, as Scalia himself points out, the Second Amendment was declaratory of rights that Americans already believed they had. Declaratory statements about traditional rights are almost always statements of principle.

In general, when the Constitution refers to a "right" or a "freedom" or a "liberty," or a "privilege" or an "immunity," it is a good guess that it is usually enacting a principle, not a rule in Larry's sense of the word. In particular, I don't think that choice of the word "right" versus "freedom" signals choice of a rule rather than a principle. (Consider once again the example of the Fourth Amendment in this regard, or the rights of petition or assembly in the First Amendment, or the rights referred to in the Ninth Amendment. It's hard to argue that all of these state rules rather than principles simply because they use the term "right" rather than "freedom.").

Posted 1:50 PM by JB [link]

Comments:

Does the right to bear arms extend to fireworks? No reason, just curious.

# posted by

mls : 5:58 PM

prof. balkin .. while i understand the scope of your discussion is concerned with the U. S. constitution .. i find it hard to accept the idea that the right of self-defense is somehow a 19th century idea ..

i also see two separate issues inherent .. the first being the individual right of any person to defend their person from assault .. and the second being the right .. or inclination of a specific society to collectively defend itself in order to maintain it's given form against an agressor .. [imminent domain?]

while it may not be germane to your intent here.. imo .. individual self-defense is directly tied to the idea of self-preservation and is therefore as old as the human species ..[but not necessarily restricted only to humans]

any animal .. human or otherwise would be expected to act in self-defense .. no ??

personally.. i've always interpreted the text of the 2nd to say literally that "the right to keep and bear arms individually shall not be infringed" was a direct recognition of the precondition stemming from the idea of the collective right of a society to defend and extend it's organizational structure from external or internal threat..

personally armed individuals can be assembled to form a collective defense of a society or organizational form ..

looking at the normal organization of professional organized forces we see ..in modern armies .. when not in a combat zone .. weapons are kept in the arsenal .. or the arms locker .. or the armory .. and are not issued to the troops to carry about on a daily basis .. but are withdrawn or issued only upon the occurance of a need .. whether that need be for one of mobilization and employment of the armed force ..or for purposes of training or purposes of maintaining use-proficiency...

for whatever reasons the weapons of those organizations whose only function is the profession-of-arms grant no license to walk about armed in the normal course of day to day activity when the force is not actively engaged .. only specific members [gate guards .. military police ..etc] walk about armed in the course of their normal duties ..

aboard ships of all navies of the world .. individually borne weapons of any type are sequestered in locked and guarded compartments and are not issued generally except in extreme or dire and unusual circumstances... once again with the exceptions stated above..

so we are confronted with two separate systmes to consider .. one in which unarmed members of even a standing force of professionals are called to a central point of storage and issued their arms when it is considered individual possession of those arms are necessary for the immediate defense ..

the second system is what ?? a loose collection of individuals which would only be called together .. or who would only organize into a collective force upon hearing of a threat.. or receiving an order to assemble ?? and the second force would bring their own private arms from their individual points of possession to the assemblage point .. ??

as a simple aside .. i can't imagine the logistics of trying to stock and supply all the various types of ammunition which would be required to make such a haphazard force effective unless some "form of regulation" was specified as to what type of weapon [arms] the individual-to-collective assemblage was required to own and possess when called ..

i'm certain this is far afield of the point you had in mind .. but while considering the ideas surrounding normal organization-of-force i was struck by the differences between the ideal of the principle and how the prinicple has been accomodated between the two opposing sets of ideas ..

i don't really have a point o make .. simply consider it fuel for the fire .. i find the radical differences between the two differing sets of armed individuals and the ways in which they "keep and bear arms" rather ironic .. self-defense notwithstanding ..

# posted by

Jkat : 6:39 PM

# posted by

celticdragon : 11:23 PM

# posted by

celticdragon : 11:24 PM

"but it is not at all clear that they were speaking about the third-- the common law right of self-defense."

friendly amendment:

"it is not at all clear that all of them were speaking about the third--etc."

or
"it is not at all clear that they--as a group--were speaking about the third--etc."

i believe the historical records clearly show that a few of them were, that a few of them definitely were not, and then it fails to show anything much about the majority.

# posted by

Anonymous : 4:51 PM

"My take on the 2nd Amendment is that it can be viewed as a civic duty."

My view is that it is an individual right intended to safeguard the capacity of individuals to contribute to a civil duty the government might otherwise seek to make impossible. A well regulated militia might be necessary to the security of a free state, but what if the state doesn't want to be free? It might seek to make a well regulated militia impossible.

The 2nd amendment bars efforts in that direction, by guaranteeing a right to be appropriately armed independent of formal militia membership.

# posted by

Brett : 6:16 PM

This comment has been removed by the author.

# posted by

Jkat : 11:21 PM

i'd strike "appropriately" from that sentence brett .. it leaves an ambiguity some future lawyer would be hellbound to interpret into something we both know you didn't intend .. just say . "the right to be armed.. as an individual.. " .. oops .. now it could be said that you can't be armed in a group ..

darn .. this law stuff is h-a-r-d. :)

# posted by

Jkat : 11:22 PM

I've always seen a serious flaw in the argument that the Second Amendment guaranties an individual right to gun ownership for purposes of armed rebellion.

If the purpose is simple self-defense, that is straightforward enough. Self defense is clearly an individual right, and it logically follows that it is best secured by a right of individual gun ownership. (Although I believe it would be compatible with restrictions limiting gun ownership to the types of weapons suitable for self-defense and not carrying too great a risk of collateral damage). The right of self defense includes a right of self defense against police brutality, but that is merely a right of defense against criminal or rogue government agents, not a rebellion against the government.

The right of revolution, OTOH, is a collective and not an individual right. I do not have the right to engage in armed rebellion whenever I personally see fit. That right belongs to the community as a whole. But individual gun ownership is not a good way to secure the collective right of revolution. A universal, organized militia (say, on the Israeli or Swiss model) is a far more effective instrument for ensuring that the army cannot be used to oppress the citizenry because the army is the citizenry.

People who argue for unrestricted individual weapon ownership to safeguard the collective right of revolution seem to assume that the citizens will, by some miraculous power of telepathy, all agree on when the right of revolution vests, all remain peaceful until then, and all act in concert when the time comes. Much more likely the people will disagree when revolution is called for and end up with half the citizens shooting at the other half.

# posted by

Essayist-Laywer : 1:44 AM

(An aside: One of the weakest features of Scalia's opinion is that it largely disregards the civic republican origins of the right and treats it as a modern liberal individualist right. This is another example of Scalia's anachronistic use of history.)

That's right. The key to understanding how this happened is that the advocates of the modern recognition of the right to bear arms tended to be western libertarian types who not only don't want their guns confiscated but don't like urban-style gun controls, such as waiting periods, registration, licensing, assault weapons bans, saturday night special bans, trigger lock requirements, tracing requirements, etc.

So they utilized the historical evidence because they knew that would appeal to judicial conservatives, but the right they were arguing for was a very individualist conception of the right.

In fact, however, the Second Amendment clearly permits lots of regulations of firearms ownership, so long as such regulations are connected to the organization, discipline, and training of the militia. Because the goal of the Second Amendment was not to enact the libertarian position on firearms ownership, but to ensure that the citizenry would be able to form an effective fighting force to secure the free state.

The NRA and libertarians want half the right, because they are very distrustful of collectivizing security. But the Second Amendment clearly protects that right to keep and bear arms so that citizens are available to protect our freedom if they are needed to.

# posted by

Dilan : 1:45 PM

"In fact, however, the Second Amendment clearly permits lots of regulations of firearms ownership, so long as such regulations are connected to the organization, discipline, and training of the militia."

I agree, but disarming people does not, and can not, contribute to the organization, discipline, and training of the militia. And classical gun control is all about disarming people.

Now, you want to mandate that everyone has to put in x number of hours a month in marksmanship practice, and must own at least a specified arm and ammo for the same, you're on very firm grounds, 2nd amendment wise. But try to get the Brady center to sign on to THAT regulation of firearms...

# posted by

Brett : 8:06 PM