Heller Commentary, Post 1: A Right of “the People”

This is part 1 of a chain of posts concerning the Supreme Court’s decision in District of Columbia v. Heller. [Part I, Part II, Part III, Part IV]

The Second Amendment famously provides that, “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.” That phraseology has puzzled a great many modern readers. Just what does the prefatory clause have to do with the operative clause? Does it limit the operative clause? And if so, how?

In its decision last week in District of Columbia v. Heller (PDF, HTML), the U.S. Supreme Court finally spoke definitively to that issue. Heller involved DC’s general ban on handguns, and its requirement that lawfully-owned firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device,” without any exception for self-defense. Dick Heller denied the constitutionality of these measures; the District of Columbia vigorously defended them against constitutional challenge.

As a threshold matter, DC argued that the Second Amendment protects a right to keep and bear arms solely in connection with service in an organized militia. This militia-centric model was directly contrary to Heller’s view—shared, it seems, by a majority of the American electorate—that the Amendment secures an individual right to possess and use guns for ordinary private purposes.

By a narrow margin of 5 to 4, the Supreme Court embraced Heller’s model of the Second Amendment. That five-justice majority further found that both the handgun ban and the District’s “safe storage” provision violated the guarantee, thus providing Heller with a major victory.

The majority opinion was written by Justice Antonin Scalia. Two justices, Breyer and Stevens, filed dissenting opinions; but there were no concurring opinions of any kind, allowing the majority to speak with one voice.

Unsurprisingly enough, given Justice Scalia’s authorship of the opinion, the Court began with a careful analysis of the Second Amendment’s text.

Operative Clause: Right of the People

The Court first scrutinized the operative clause: “the right of the people to keep and bear arms, shall not be infringed.”

In the first place, the Court noted, this text codifies a “right of the people.” Turning to the broader body of the Constitution—specifically, its original text and that of the Bill of Rights—the Court found that the precise phrase “right of the people” makes precisely two other appearances: namely, “in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause.” The Ninth Amendment of course uses very similar language. “All three of these instances,” Scalia wrote for the Court, “unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”

The shorter phrase “the people” makes three additional appearances. The Preamble declares that “We the People of the United States . . . do ordain and establish this Constitution.” Article I, Section 2 provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” And the Tenth Amendment affirms that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Court conceded that these arguably refer to “the people” in a collective sense. But it ably distinguished them by noting that they all “deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”

The Court went on to stress that every occurrence of the phrase “the people” in the unamended Constitution and the Bill of Rights, refers to all members of the political community, rather than to an unspecified subset of them. In truth, this was far from obvious. Though Article I specifies that “the People of the several States” are to elect the members of the House of Representatives, it certainly does not provide for universal suffrage; rather, “the Electors in each State” are to have “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” By analogy, one might say that the words “the people” in the Second Amendment should be read as a loose, quasi-poetic reference to the militia.

Still, the Court was right to be skeptical of the notion that a “right of the people” could be dependent upon service in a formal, corporate body—here, the organized militia—whose composition was subject to the whim of Congress. As the Court put it, “if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” And even limiting “the people” to the broader, “populist” militia (all able-bodied American men) is hard to square with the usage of the First, Fourth, and Ninth Amendments. The four amendments had, after all, been part of the same package.

Justice Stevens, however, was not impressed. He first took issue with the Court’s parsing of the First Amendment. The rights of assembly and petition alone are referred to as “right[s] of the people.” These rights, he suggested—in contrast to the individualistic guarantees of speech, press, and the free exercise of religion—contemplate “collective action.” After all, an “assembly” by definition requires more than a single person; and while any one individual might petition the government, it would require group action to be effective.

It is certainly true that the right of assembly cannot be exercised alone. But Justice Stevens missed the point; this “right of the people” is clearly one that is vested in each of “the people” individually. It is not a term of art referring to the body politic as a corporate entity, carrying out some quasi-sovereign function.

Stevens’s right-of-petition argument suffers from the same fault. More remarkably, it fails even on its own terms: this right can be exercised alone. That an “effective” exercise of the petition right might require the action of a great many people scarcely proves anything. Indeed, the same might be said of freedom of speech; the more voices to relay the same message, the more likely it is to spread and be heeded.

Justice Stevens next addressed the Fourth Amendment, which provides (in part) that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Even he conceded that this “right of the people” “need not be exercised in any collective sense.” But this was not decisive, he maintained, in determining the same phrase’s meaning in the Second Amendment, because (a) the First Amendment uses the phrase “the people” in a collective sense; and (b) the Fourth Amendment “describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual liberty interest.” With regard to the second point, it is far from obvious why this difference in phraseology should make any difference. Stevens nonetheless failed to elaborate. (The Second Amendment, in fact, does use the negative language “shall not be infringed.” Stevens must therefore demonstrate that, even more counterintuitively, the phrasing of the right itself in negative rather than positive terms is significant.) In any event, the first point is flat-out wrong; the First Amendment, as discussed above, does not refer to “the people” as a corporate entity, but to all of them individually.

Elsewhere, Justice Stevens faired better. Though the Court insisted that “the words ‘the people’ as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments,” the Court itself ultimately limited the protected class to “law-abiding, responsible citizens.” Yet “even felons (and presumably irresponsible citizens as well) may invoke the protections of” the First and Fourth Amendments.

There’s something to be said for this argument. But the exclusion of these groups may be justified not by a narrow understanding of “the people,” but rather by some well-established background principle affirming a non-literal but narrow exception—analogous, say, to libel in the First Amendment context. Alternately, it might be thought that these restrictions are indeed core Second Amendment restrictions, but that they could nonetheless survive review. And of course, one could also disclaim the Court’s dicta, and declare that the right must indeed be open to everyone. Each of these possibilities seems considerably more plausible than the notion that some U.S. citizens are not among “the people” to which the Second Amendment refers.

Even so, the conclusion that a “right of the people” is a right vested in each of them individually, does not lay to rest the militia-centric model relied upon by DC. It still remains possible that the phrasing of the right itself deprives a number of persons of its protection. Consider, for example, these fictional constitutional provisions:
— “The right of elected officials to speak freely shall not be infringed.”
— “The right of the people to speak freely shall not be infringed.”
— “The right of the people to speak freely when serving as elected officials shall not be infringed.”

Clearly, the first provision protects only elected officials. In contrast, it seems obvious that the second protects a right of all individuals. But what about the third? Though the right is said to be one held by “the people,” this provision is functionally identical to the first. That is, the right itself is confined to a specific context—in this case, one that arises for only a small percentage of the population.

The District of Columbia had essentially argued that the phrase “to keep and bear arms” meant “to use and possess weapons when serving in a government-managed militia.” However awkward this reading may be, the point is that its plausibility is not affected by the meaning of the phrase “the people.”

In short, the Court was correct to presume that “the people” in the Second Amendment means the same thing that it does in other parts of the Bill of Rights. This did not, however, justify its “strong presumption” that the right is “exercised individually.” The Court should have simply pointed out that “the people” itself could not plausibly be read to refer only to militia members, and then moved on to its (very persuasive, in my opinion) analysis of the phrase “keep and bear arms.”

For the next post in this chain, click here.

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