Cuil's Unimpressive Start

P.S. Huff

Cuil, a new search engine, has received a great deal of media attention—some of it positive, some of it negative (or is all press good press?). I'm frankly underwhelmed; once you get past its admittedly well-designed home page, there's little to like about Cuil.

Most critically, I found the search results themselves to be well below Google quality. I have to add the gigantic caveat, of course, that my dozen-or-so searches are hardly a comprehensive test. But compare, for example, a Google Search for presidential election results with a Cuil Search for the same thing; or the Google and Cuil results for Heller Second Amendment. Cuil claims to have indexed a larger share of the web than any of its rivals. But even if that is true, the point of a search engine is to find relevant results fast. On that point, Cuil is something of an underperformer.

Cuil's interface, moreover, is a painful retrogression from, rather than an improvement on, that of Google. The decision to display search results in two or three columns (determined by user preference) only makes for an eyesore. And the images accompanying results add nothing of value; it seems, in fact, that they're often flatly unrelated to the web pages they appear beside.

Also disappointing is the absence of any counterpart to Google News Search or the supremely-useful Google Book Search. As of today, Cuil.com searches only the internet at large.

Of course, the search engine is still brand new. Perhaps Cuil will improve with time; perhaps it will even emerge as a major rival to the powerhouse known as Google. But for now, I'm unimpressed.

Heller Commentary, Post 4: A Tale of Two Clauses

P.S. Huff

This is part 4 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 Prefatory Clause and the Existence of an Individual Right

Unsurprisingly, the Court found the prologue perfectly consistent with its interpretation of the operative clause. History had shown that "the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents." And fear of the federal government's "disarm[ing] the people in order to impose rule through a standing army or select militia" had been "pervasive in Antifederalist rhetoric." The right to keep and bear arms, the Court argued, had been "understood across the political spectrum . . . to [help] secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down."

In truth, prohibiting the private ownership and use of weapons would not destroy the "militia" as defined by the Court. Under its standard, an able-bodied man is ipso facto a member of the militia, regardless of whether he has any experience with firearms whatsoever. The Court's point can be reformulated, however: even if general disarmament would not destroy the militia, it would certainly threaten the existence of a well-regulated militia.

The Court likely erred in adopting its "populist" definition of militia, but ultimately nothing turns on it. As the Court said, logic requires that there be a connection between the two clauses. But this requirement is easily satisfied without resort to the Court's unusual definition of "militia." Though it was not a matter of definition, founding-era militias certainly were bodies of citizen-soldiers comprising a large subset of the population; and these men, when called upon, were expected to bring their own arms. Bearing in mind these background assumptions, it is easy to see the logical connection between a well-regulated militia and the guarantee of an individual right* to keep and bear arms. As Thomas Cooley wrote in The General Principles of Constitutional Law in the United States of America (1880):

The meaning of the provision [i.e., the Second Amendment] undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

Id. at 271. In other words, by allowing for a populace familiar with weapons, the right helps secure a suitable pool from which to draw the militia. Neither framing-era interpretive conventions, nor common sense, requires an exact "fit" between the prefatory clause and the operative clause; a substantial connection is enough. Compare N.H. Const., Part I, Art. 36 (1784) ("Economy being a most essential virtue in all states, especially in a young one, no pension shall be granted, but in consideration of actual services; and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time."). (For a general survey of analogous framing-era state constitutional provisions, see Eugene Volokh's classic 1998 article, The Commonplace Second Amendment, 73 NYU L. Rev. 793.)

The Prefatory Clause and the Scope of the Individual Right

So the right to keep and bear arms, secured by the Second Amendment, attaches to individuals generally, rather than to militiamen alone. Yet everyone agrees that the right is not absolute; it is subject (to use a favorite phrase of our day) to "reasonable regulations."

This raises an interesting question. When a provision is vague—and unless we are to interpret the operative clause literally, it qualifies for that label—it is common to clarify the scope of the provision by referring to some background principle(s) associated with it. Thus, for example, racial discrimination is a "paradigmatic" case under the Fourteenth Amendment's Equal Protection Clause, in a way that age discrimination is not. And this is true even though both fall equally within the letter of the clause. Analogously, "core" Second Amendment interest(s) cast light on the Amendment's scope. Might the Second Amendment's prologue suggest that the militia-purpose ought to be the defining feature of Second Amendment jurisprudence, with self-defense being of little importance?

That the stakes here are not trivial should be made clear. Suppose that—as is likely true—rifles and shotguns are equally appropriate for militia service, but that handguns are markedly superior for self-defense. If self-defense is a key Second Amendment interest, a policy like that challenged in Heller—one that couples a general prohibition on handguns with (purportedly, anyway) the allowance rifles and shotguns as alternatives—still looks very vulnerable. But if, on the other hand, the militia purpose is to dominate the analysis, such a policy might well be constitutional.

While I think the Court was quite right to reject this "militia-centric" approach, its rejoinder is not altogether satisfying:

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself.

This is an odd argument. To be sure, the Court was correct that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right [to keep and bear arms]." Nothing in the prologue's language demonstrates exclusivity. But the following pronouncement that "most [Americans] undoubtedly thought it even more important for self-defense and hunting," is less obvious. Whatever the general state of public opinion at the time, the Second Amendment's prefatory clause does suggest that militia-preservation was not a mere secondary interest.

The Court argued that the prologue "can only show that self-defense had little to do with the right's codification," and that it therefore cannot limit the scope of the right. This reasoning is strained. The history recounted by the Court pertains to a plausible motive that the government might have for disarming the people; namely, imposition of rule by a standing army or select militia. In contrast, the Second Amendment's prologue speaks to the entirely separate issue of why the right is valuable and therefore "shall not be infringed." When guns are taken away, they are taken away for all purposes. If self-defense were deemed even more important than preservation of the militia, we would expect to see a reference to self-defense in the prologue.

This is not to say that the Court's conclusion was wrong. Recognition of the right to keep and bear arms was not an innovation of the framing era; it had deep roots in English law, and has traditionally been associated with non-militia interests. A militia-centric construction allows the prefatory clause to dramatically alter the scope of the operative clause, despite their limited grammatical relationship. The post-enactment commentary, discussed at length by the Court, flatly refutes this awkward parsing of the Amendment.


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* — I use the term "individual right" to mean a private right unconditioned on militia service.
  

Heller Commentary, Post 3: Prefatory Clause

P.S. Huff

This is part 3 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 text of the Second Amendment's prefatory clause is as follows: "A well regulated Militia, being necessary to the security of a free State . . . ." Though the Court's treatment of the clause was brief, it did reach non-obvious conclusions.

A Well-Regulated Militia

In the first place, the majority read the term "militia"—for purposes of both the Second Amendment and Article I, § 8—as referring to all able-bodied men, as opposed to members of the formal, government-managed bodies identified by modern law as "the organized militia." 10 U.S.C. § 311. Here, the Court found it significant that Article I, § 8 appeared, on its face, to contemplate the pre-existence of the militia. Congress, after all, had power only to "[t]o provide for calling forth the Militia" and for "organizing, arming, and disciplining" it; there was no enumerated power of creation. And Congress had power "not to organize 'a' militia . . . but to organize 'the' militia, connoting a body already in existence."

In support of its broad reading of "militia," the majority cited United States v. Miller, 307 U.S. 174, 179 (1939), and a handful of founding-era sources. The Miller passage cited by the Court affirmed, with reference to the founding era, that "the Militia comprised all males physically capable of acting in concert for the common defense." By itself, however, this language was ambiguous: Had the Miller Court adopted a definition of the term "Militia," or had it merely been describing the militia as then constituted (i.e., as constituted in the founding era)?

The following excerpt sets the passage in its immediate context:

The Constitution, as originally adopted, granted to the Congress power—"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Miller, 307 U.S. at 178–179.

The language cited by the majority in Heller was preceded, then, by a sentence in which the Miller Court had purported to find the "signification attributed to the term Militia" in "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators." Id. at 179. That certainly provides support for a definitional reading. But the opinion went on to endorse, in the very next sentence, this more restrictive definition: "A body of citizens enrolled for military discipline."* Id. That suggests the Miller Court's statement may well have been merely descriptive, after all.

Ultimately, the founding-era sources cited by the Court were arguably more significant than what the ambiguous Miller opinion may or may not have said. But these, too, were less helpful than the Court let on.

First up was Noah Webster's celebrated American Dictionary of the English Language (1828), which defined "militia" as follows:

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

The first sentence, in supposing that a person must be "enrolled for discipline" to qualify, actually clashed with the Court's reading. Perhaps for that reason, the Court relied only on the second. But even the second sentence supported the majority's position only if everything after "able bodied men" was merely descriptive, while those words themselves were definitional. That seems unlikely.

The Court also cited Federalist No. 46, in which "Publius" had spoken of "a militia amounting to near half a million of citizens with arms in their hands." It seems clear that founding-era militia service was a duty imposed upon (roughly) all able-bodied men; and so it is no surprise that Madison's figure would approximate their number. A description, however, is not a definition. Under our Constitution, the presidential qualifications are "natural born" citizenship (subject to an obsolete qualification), being 35 years of age, and 14-year residency in the United States. U.S. Const., Art. II, § 1. But this tells us nothing about the definition of "presidential qualifications." The same logic applies to the militia.

The Court's final citation was to a letter penned by Thomas Jefferson in 1811, the relevant passage of which is as follows:

You apprehend that a single executive, with eminence of talent, and destitution of principle, equal to the object, might, by usurpation, render his powers hereditary. . . . I do not believe . . . that this danger is lessened in the hands of a plural executive. . . . [T]he true barriers of our liberty in this country are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed. Seventeen distinct States, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration, regularly organized with legislature and governor resting on the choice of the people, and enlightened by a free press, can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess. While that may paralyze the single State in which it happens to be encamped, sixteen other, spread over a country of two thousand miles diameter, rise up on every side, ready organized for deliberation by a constitutional legislature, and for action by their governor, constitutionally, the commander of the militia of the State, that is to say, of every man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry and artillery, trained under officers general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience.

Letter to Destutt de Tracy (Jan. 26, 1811), printed in The Writings of Thomas Jefferson, Vol. 9, pp. 308–309 (P. Ford, ed. 1898) (emphasis added). This example is somewhat better, but in the end, still inadequate. It's true that not literally "every man . . . able to bear arms" would have been enrolled as a member of the militia (narrowly defined). But given that Jefferson's letter refers to the governor as the commander of this militia ("that is to say, of every man in it able to bear arms"), it seems likely that he was simply speaking loosely.

There was greater trouble beneath the surface. As recounted above, the Court insisted that the militia had been a pre-existing body, whose existence was not dependent on federal law. In the course of this argument, it described a 1792 militia statute, 1 Stat. 271 (Act of May 8, 1792), as a mere exercise of Congress's "plenary power to organize the units that will make up an effective fighting force." While the statute obviously excluded some number of able-bodied men, "the federally organized militia" (reasoned the Court) could consist of "a subset of them."

Note, however, that the Act had provided that this "subset of them" "severally and respectively be enrolled in the militia." What did "the militia" mean here, if not what the Court called "the organized militia"? And there is more; the Act bore the title, "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States" (emphasis added). If the "militia" necessarily referred to all able-bodied men, Congress would scarcely have been able to "establish[] . . . a[] Uniform Militia." At the very least, then, the term was susceptible to a narrower definition. And as we have seen, none of the sources cited by the Court clearly embraced its able-bodied men definition.

The House debate on the Militia Bill, as recorded in the (admittedly imperfect) Annals of Congress, casts further doubt on the Court's populist definition of "militia." After the first section of the bill was read,

Mr. Struges [a Connecticut representative] said, that he conceived some amendment was necessary to this section. It appears to consider the militia of the several States, as the militia of the Union; whereas the Constitution considers it as belonging to the respective States; that the States alone are to say of what description of persons the militia shall consist, and who shall be exempt from militia duty; Congress have only power to organize them, when thus designated. He therefore moved that the section should be amended, by striking out the clause, which he considered as involving the principle he was opposed to.

3 Annals at 418–419. Struges, then, seems to have shared the Heller Court's narrow understanding of the term "organiz[e]." He reached, however, a very different conclusion: to him, this established that the militia's composition was a matter of state law. Representative Livermore of New Hampshire concurred, evidently endorsing the argument from pre-existence: "It is the militia of the several States that Congress have power to organize and provide a mode of discipline for. It is not a militia to be formed, or created—it already exists." 3 Annals at 419. (The Annals do not make clear whether the congressman was relying on the a-vs.-the argument.)

Not everyone was impressed with these arguments, and Struges's motion failed. 3 Annals at 420. Yet no one appears to have embraced the view that the militia was, at least for constitutional purposes, simply all able-bodied men. No one claimed that Congress, in providing for enrollment of men in the "organized militia" was merely designating what portion of the militia at large would be federally organized.

Other defenses of congressional power were made. Connecticut Representative Hillhouse retorted that Congress's power to "organiz[e]" the militia would be useless under such a stingy reading. He insisted that Congress was "empowered to organize the militia, to say what descriptions, ages, &c., the militia shall consist of; to form them into companies, corps, and regiments, &c." 3 Annals at 419. Representative Wadsworth (CT) objected that "[t]he people in several States already avow the sentiment, that they think that Congress alone has the power to form the militia." Id. at 420. And Representative Murray (MD) argued that "[t]he militia, contemplated in the Constitution, certainly does not mean an existing militia; for many of the States have no militia nor militia laws; and therefore the clause must respect a militia to be formed or created." Id.

Those arguments were made. But no one seems to have made the very different argument that the Supreme Court was to embrace roughly 220 years later. This silence is striking, for this was, after all, merely the Second Federal Congress. If the Heller Court was correct about the original understanding, it seems that understanding was lost rather quickly.

(To be clear, I don't claim to know for certain that the Court was wrong. Perhaps there is evidence, not cited by the Court, that I've overlooked. At the very least, however, there's reason for skepticism.)

A Well-Regulated Militia

Much more straightforward was the Court's (correct) conclusion that the adjective "well-regulated," as used in the Second Amendment, meant "nothing more than the imposition of proper discipline and training." This traditional usage is clearly illustrated in a passage from Federalist No. 29:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States.

Similarly, William Rawle's celebrated work, A View of the Constitution of the United States of America (2d ed. 1829), contrasts a "well regulated" militia with a "disorderly" one, and speaks of "such regulations as will tend to make good soldiers." Id., p. 125. And Joseph Story, in his Commentaries on the Constitution of the United States (1833), laments that "though . . . the importance of a well regulated militia would seem so undeniable, 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 burthens, to be rid of all regulations." Id., Vol. 3, pp. 746–747.

Necessary to the Security of a Free State

Lastly, the Court concluded that the term "free state" referred, in the Second Amendment, to a "free polity" or "free country." It did not refer specifically to a member of the union. Intuitively, that strikes me as correct, and the Court marshaled some historical evidence for it. For a lengthier commentary reaching the same conclusion, see Eugene Volokh, Necessary to the Security of a Free State, 83 Notre Dame L. Rev. 1 (2007).

For the next post in this chain, click here.

 
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[*] — Here, the Miller Court was presumably quoting from Jeffers v. Fair, 33 Ga. 347, 349 (1862). Though the Court gave no direct citation for the quoted definition, it did cite Jeffers v. Fair in a footnote identifying "some of the more important opinions and comments by writers." Miller, 307 U.S. at 182, n3. Note that in Jeffers, the Georgia Supreme Court was wrestling with the meaning of the Confederate States Constitution.
  

Heller Commentary, Post 2: "Keep and Bear Arms"

P.S. Huff

This is part 2 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]

Operative Clause: Keep and Bear Arms

The Court next turned to the meaning of "keep and bear Arms." In its brief, DC had attempted to assign an exclusively military meaning to this phrase. When the Amendment was adopted, the District had urged, "Arms" referred distinctly to "military weapons." To "bear Arms" meant not to carry arms, but to "us[e] weapons in a military context." And the inclusion of the word "keep" did nothing to undercut its military reading, for "the expectation of the Framers was that members of militias would bring the weapons required for service." Brief for Petitioners, 15-17.

At first glance, this reading seems plausible enough. But it cannot withstand scrutiny, and the Court convincingly disposed of it. See slip op., 7-18.

The District's assertion that "Arms" were "military weapons" was especially weak. Samuel Johnson's Dictionary of the English Language defined "arms" as "Weapons of offence, or armour of defence." Likewise, Noah Webster's famous 1828 American Dictionary of the English Language gave as the primary definition of "arms," "Weapons of offense, or armor for defense and protection of the body." There was little basis for the District's narrower definition.

But what about "bear Arms"? Certainly, to convey or carry was a core definition of the term "bear." But might the words "bear Arms," taken together, have had a distinctly military meaning? DC had maintained that the most natural meaning of "bear Arms" in the Second Amendment was "using weapons in a military context." This idiomatic sense of the phrase "was the only sense in which the young Congress and its predecessors ever used the phrase," and "[f]or decades after the adoption of the Second Amendment, the military sense of 'bear arms' was 'overwhelmingly dominant.' " Brief for Petitioners, 16.

"Bear arms" did indeed have an idiomatic, military meaning in the framing era. But unfortunately for DC, that meaning was not the one they had ascribed to it. Rather, "bear arms" could idiomatically mean to serve as a soldier or wage war. That idiomatic sense wouldn't do; as the Court said, "[g]iving 'bear Arms' its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed." Slip op., 13.

Instead, DC had urged that "bear arms" meant to "carry arms" (its non-idiomatic meaning), but only as part of some form of military service. Brief for Petitioners, 19. As the Court pointed out, however, no evidence from the framing era even hinted at such a meaning. The phrase "bear arms" was often used in a military context, to be sure; but that's worlds apart from having an inherent military connotation. And in any case, the Court found numerous framing-era examples of "bear arms" being used in a clearly non-military sense. Slip op., 13-15. (For more on this point, see the paper of Cramer and Olson, What Did "Bear Arms" Mean in the Second Amendment?, available at SSRN.)

Unfortunately, the Court—evidently not content to rely on the literal meaning, "carry arms"—chose to put its own gloss on the phrase "bear Arms": "When used with 'arms,' . . . the term ['bear'] has a meaning that refers to carrying for a particular purpose—confrontation." Slip op., 10. On this point, the Court cited a dissenting opinion by Justice Ginsburg, which had in turn cited the sixth edition (1998) of Black's Law Dictionary. Yet insofar as the Court was trying to pin down the original import of the Second Amendment, it had to cite some framing-era authority saying much the same thing. It did not.

It's unclear just why Justice Scalia made this move (or agreed, in any event, to include it in his opinion for the Court). Perhaps he felt it put a Second Amendment right of self-defense on sounder footing. But being sheer ipse dixit, the claim was unconvincing.

Nonetheless, the District's reading of "bear Arms" was fragile. What, moreover, was to be made of the phrase "keep . . . Arms"? Surely it had no distinct, military meaning. DC had maintained that the inclusion of the word "keep" was entirely consistent with its military reading, for (to quote the Brief for Petitioners again) "the expectation of the Framers was that members of militias would bring the weapons required for service." And "[t]he District does not contend that individuals may not 'keep' their 'Arms,' but that they may keep them only if they have a militia-related reason for doing so." Brief for Petitioners, 16-17, 19.

But how, precisely, was the (supposed) military limitation of "bear arms" to be transposed onto the phrase "keep arms"? The District had offered no solution to this puzzle. The various ratification-era militia statutes it had pointed to—using the phrase with respect to militia duty (Brief for Petitioners, 17)—showed only that "keep arms" could be used in a military context (a fact no one ever doubted). They hardly demonstrated that "keep arms" had a military connotation; such an argument was (in the Court's words) "rather like saying that, since there are many statutes that authorize aggrieved employees to 'file complaints' with federal agencies, the phrase 'file complaints' has an employment-related connotation." Slip op., 9.

Justice Stevens, echoing the District of Columbia, insisted that "keep and bear arms" "perfectly describes the responsibilities of a framing-era militia member." Perhaps, but that in no way demonstrates that "keep arms" has, or can have, an intrinsically military meaning. Stevens found it significant, however, that "the clause protects only one right, rather than two. It does not describe a right 'to keep arms' and a separate right 'to bear arms.' Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary." Slip. op., 16.

This argument was strained. One did not have to look any further than the First Amendment to find multiple guarantees preceded by a sole instance of the word "right" (singular): "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (The Court also cited the Pa. Declaration of Rights §§IX, XII, XVI, and the Ohio Constitution of 1802, Art. VIII, §§11, 19. Slip. op., 18.) Justice Stevens attempted to salvage his argument by noting that "[i]n contrast to the language quoted by the Court, the Second Amendment does not protect a 'right to keep and to bear arms,' but rather a 'right to keep and bear arms.'" Slip. op., n13. But he did not explain why the mere inclusion of the word "to" should affect the analysis.

Most devastatingly, it appears the phrase "keep and bear arms" was itself used in non-military contexts. Court, slip. op., 18. The District stood on shaky ground, indeed.

Meaning of the Operative Clause

Putting all of the words together, the Court concluded that "the right of the people to keep and bear arms" extends to the possession and carrying of weapons "in case of confrontation." It found "strong[] confirm[ation]" of this view, moreover, in English and American history. Slip op., 19-22. But what about the prefatory clause? As the Court said, "[l]ogic demands that there be a link between the stated purpose and the command." Slip. op., 4. Accordingly, the Court moved on to a brief examination of the prefatory clause (slip. op., 22-25), and of its relationship to the operative clause (slip. op, 25-27).

For the next post in this chain, click here.

Kurt Lash's Eleventh Amendment Revisionism

P.S. Huff

Kurt Lash has posted a new paper, Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, to SSRN. In it, he takes issue with much of the conventional wisdom concerning the Eleventh Amendment:

Most scholars and courts assume that the Eleventh Amendment emerged from a sudden 'shocked' public reaction to the Supreme Court's decision in Chisholm v. Georgia. The Supreme Court's decision in Hans v. Louisiana has been subject to particular criticism for extending the doctrine of sovereign immunity beyond the text of the amendment and the particular subject matter before the Court in Chisholm. This article contends that the modern emphasis on Chisholm v. Georgia as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of compelling a state to defend itself in federal court at the behest of an individual. That debate preceded Chisholm and would not reach critical mass until the state of Massachusetts responded to its own suit in Vassal.

All sides in this debate accepted the idea that the national government could invoke sovereign immunity against similar suits. Denying states the same immunity called into question whether they remained sovereign entities and retained the non-delegated sovereign rights and powers that Federalists had promised in the state ratifying conventions. More was at stake than mere betrayal, or even fiscal liability. Whether the states remained sovereign entities under the Constitution affected the basic rules of constitutional construction for, according to the Law of Nations, delegations of power from a sovereign are to be strictly construed. Allowing suits against states thus implicated the principle of limited federal power across all areas of delegated authority. The key to understanding the Eleventh Amendment is the text's focus on the proper judicial construction of delegated power in Article III - a demand that federal courts respect the retained rights of the people in the states and apply the background rule of strict construction.

I'm not familiar enough with the historical materials to judge Lash's conclusions. But there's no doubt that conventional wisdom is often superficial or flat-out wrong. (Consider, for example, the notion that Marbury v. Madison "established" judicial review.)

Well worth reading.

Heller Commentary, Post 1: A Right of "the People"

P.S. Huff

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.