The SAF brief is especially important because Justice Scalia’s majority opinion in DC v Heller drew on many sources referenced in the following brief.
The Second Amendment Foundation (“SAF”), a tax exempt organization under § 501(c)(3) of the I.R.C., is a non-profit educational foundation incorporated in August 1974 under the laws of the State of Washington.
SAF seeks to preserve the effectiveness of the Second Amendment through educational and legal action programs. SAF has 650,000 members and supporters residing in every state of the Union.
♦ ———————————
The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.
♦ ———————————
ARGUMENT
United States v. Miller is unworkable: Petitioners’ principal claim is that the 2nd Amendment “protects the possession and use of guns only in service of an organized militia.” This interpretation leads to one of three untenable conclusions:
• that the federal government is free to eliminate the people’s constitutional right to keep and bear arms by abolishing or failing to maintain an organized militia, a conclusion that is absurd on its face; or
• that American citizens have a right to require the federal government to maintain an organized militia in which they can keep and bear arms, which implies–contrary to all historical evidence– that the Second Amendment substantially amended the provision of Article I giving Congress virtually unfettered authority to regulate the militia;4 or
• that the Second Amendment forbids Congress to preempt state laws conferring a right to keep and bear arms while serving in a state militia, which has the problems discussed below.
Petitioners appear to adopt this third alternative, which is fatally flawed.
1. Like the second alternative, it entails an historically unsupported assumption that the Second Amendment substantially altered Congress’ Article I authority to regulate the militia.
2. A right of the states to organize and arm their own militias as they see fit conflicts with the constitutional prohibition against their keeping troops without the consent of Congress.
3. This Court has consistently concluded that the federal government has extremely broad powers to preempt state militia regulations, and has never suggested that the Second Amendment has any relevance at all to preemption questions. E.g., Houston v. Moore, 18 U.S. 1 (1820); Perpich v. Dep’t of Def., 496 U.S. 334 (1990).7 Accordingly, petitioners’ interpretation of the Second Amendment is insupportable.
The Miller case suggests an interpretation that is different from petitioners’, and more facially plausible, namely that private citizens might have a right to possess weapons that are “part of the ordinary military equipment or [whose] use could contribute to the common defense.”
This test (which is not Miller’s holding) implies that American citizens have a right to possess at least those weapons that an unaided individual can “bear” and that “could contribute to the common defense.” Today this would include, at a minimum, the fully automatic rifles that are standard infantry issue, and probably also shoulder-fired rockets and grenades.
When Miller was decided, infantry were typically armed with the same sort of bolt-action rifles that civilians commonly kept for use in everyday life.
Dissenting in Houston v. Moore, Justice Story noted that the Second Amendment at most might confirm that states have a limited concurrent power to regulate their militia “in the absence of, or subordinate to, the regulations of Congress.” 18 U.S. at 52-53. Cf. Hamilton v. Regents, 293 U.S. 245, 260 (1934)(citing Second Amendment when noting that state militia laws that are not preempted must also transgress “no right safeguarded to the citizens by the Federal Constitution”).
The SAF brief goes on to explain that the Miller case focused on whether the weapon (a sawed-off shotgun) was militarily useful and concludes that such an approach is ambiguous when it comes to deciding whether individuals can assert the Second Amendment right to keep and bear arms apart from membership in a state sponsored militia:
Accordingly, the ambiguous opinion in Miller should be read to hold only that this Court required further evidence before it could decide whether an unregistered short-barreled shotgun was, in the circumstances presented by that case, covered by the Second Amendment.
As the following discussion will show, the purpose of the Second Amendment is to prevent Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens. The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies.
The language, grammar, and history of the Amendment demonstrate both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.
II. The text of the Second Amendment establishes that the constitutional right extends beyond militia-related weapons and activities.
Eighteenth century state constitutions frequently included explanatory language that was manifestly over- and/or underinclusive.See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).
A. The grammatical structure of the Second Amendment does not imply that the purpose of the constitutional right is limited to fostering a well regulated militia.
The most significant grammatical feature of the Second Amendment is that its preamble is an absolute phrase, often called an ablative absolute or nominative absolute.
Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause.
The Northwest Ordinance (for example) stated that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”.
The SAF brief goes into a fairly tedious grammatical discussion that includes very some tecnical details pertaining to the syntax and linguistical construction of the preamble’s endorsement of militias. Some editorialists have criticized Justice Scalia’s opinion (which contains even more linguistical analysis) arguing that the majority tortured the English language in order to achieve an outcome-oriented “activist” decision.
Of course, the reality is that Justice Stevens and his Constitutional wrecking crew (aka the minority) are the judical activists. Justice Stevens leaps through a series of mental gymnastics in order to conclude that only state militias are encompassed in the Second Amendment’s language. Individuals, according to the minority, have no recourse under the Second Amendment. Why- because the Miller case held that weapons must have useful military purposes and that sawed-off shotguns lack such military usefulness. It takes a great deal of linguistic agility to get from Miller to Justice Stevens’ dissent. Justice Stevens’ dissent makes for great reading- if you want to major in psycho-linguistics! The reality is that Miller was about the federal government’s ability to regulate firearms and had nothing to do with asking the question before the Court in Heller; i.e., the question of whether the Second Amendment is an individual right.
No one even questioned the meaning of the Second Amendment in the 1930s. The Miller case was decided not long after the federal government made its first foray into controlling weapons like sawed-off shotguns and machine guns.
Prof. Lund’s brief on behalf of SAF continues:
C. “The people” referred to in the Second Amendment has always been a much larger body of individuals than the militia.
The militia has always been a small subset of “the people” whose right to keep and bear arms is protected by the Second Amendment. James Madison, for example, estimated that the militia comprised most obviously…
… women were not part of the eighteenth century militia, nor are they included today (except for female volunteers in the National Guard). Women, however, have always been citizens and thus part of “the people.” See, e.g., Minor v. Happersett, 88 U.S. 162, 165-70 (1874) (although women did not have voting privileges, they were part of “the people” who ordained and established the Constitution, and they have always been citizens).
Just as women have always been covered by the First Amendment’s “right of the people” to assemble and petition for redress of grievances, and the Fourth Amendment’s “right of the people” to be secure from unreasonable searches and seizures, women have always had the same Second Amendment rights as men.
Even if one mistakenly supposed that “the people” referred to in the First, Second, and Fourth Amendments included only those citizens with full political rights (thus excluding women), the militia and the people would still remain substantially noncongruent.
Under the Second Militia Act of 1792, for example, the militia included most free, able-bodied male citizens who were at least 18 but under the age of 45. This would have included a substantial number of men who were not old enough to vote. The framers of the Bill of Rights knew how to draw precise distinctions between rights appertaining to militiamen and those belonging to the general population. See U.S. Const.amend. V (requiring presentment or grand jury indictment “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”).
This example further undermines the supposition that the framers thoughtlessly conflated the militia with the people in the Second Amendment. Political speeches during the founding period sometimes seemed to equate the militia with the people. Careful attention to the context, however, shows that such statements were not meant literally, but rather served rhetorically to contrast a relatively broad-based militia with narrower variations. See,e.g., 10 The Documentary History of the Ratification of the Constitution 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (George Mason at the Virginia ratifying convention); 2 The Complete Anti-Federalist 341 (Herbert J. Storing ed., 1981) (Federal Farmer).
Thus, the militia included many men who did not have full political rights. The opposite form of noncongruence was also significant. Those who were physically unable to perform militia duties, as well as those aged 45 and older, still had all their political rights, including the right to vote. Besides the numerous men in these categories, many other citizens were legally exempted from militia duties. Thus, many men with full political rights were not subject to militia obligations.
The noncongruence of the militia and the people points to another fatal defect in petitioners’ interpretation of the Second Amendment. Nothing in the Constitution purports to forbid Congress from exempting everyone from militia duties, as this Court has recognized.
III. The nature and history of the Second Amendment confirm that its purpose cannot be confined to fostering a well regulated militia.
The preceding analysis demonstrates that the text does not impose a “militia-related” limitation on the Second Amendment right. The constitutional language, however, would be nonsensical if one could not specify any relation at all between the right to arms and the desideratum of a well regulated militia. There is such a relationship, though not the one assumed by petitioners, who mistakenly contend that the Second Amendment protects access to arms only in the service of an organized militia.
A. The Second Amendment contributes to a well regulated militia by preventing a specific misuse of Congress’ Article I authorities, including its authority to regulate the militiaArticle I of the Constitution gives Congress virtually plenary authority to regulate the militia, and the Second Amendment does not purport to shift any of that power to the state governments. The Court has recognized this fact by deciding numerous preemption cases involving state militia laws without so much as mentioning the Second Amendment. See, e.g., Houston v. Moore, 18 U.S. 1 (1820); Perpich v. Dep’t of Def., 496 U.S. 334 (1990).
Let us focus again on the language of the Constitution. One obvious way for a militia to be well regulated is to be well trained or well disciplined as a military organization, and the framers of the Second Amendment no doubt meant to conjure thoughts of such an organization.
32 The Second Amendment, however, added absolutely nothing to Congress’ almost plenary Article I authority to provide for military training and discipline.
Furthermore, the term “well regulated” also has a broader meaning that is actually more relevant in this context.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects. . . . If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation, and at the disposal of that body, which is constituted the guardian of the national security.
As its operative clause makes clear, the Second Amendment simply forbids one kind of inappropriate regulation (among the infinite possible regulations) that Congress might be tempted to enact under its sweeping authority to make all laws “necessary and proper” for executing its Article I militia powers (or perhaps other delegated powers).
Note: The brief discusses how the drafters of the Bill of Rights were concerned as to the negative consequences of standing armies (much like people today that justifiably express concerns that military exigencies may subvert our Constitutional framework and undermine privacy and freedom. There was also concern that state militias would come under federal control and/or that the federal government would fail to maintain organized militias. Either circumstance would hold the potential of eroding national and local security:
…or (the federal government) may so neglect the militia as to deprive it of any meaningful existence.
B. The Second Amendment’s background and drafting history confirm that the constitutional right is not limited to militia-related purposes.
The history of the Second Amendment confirms this limited and indirect – though real – relationship between a well regulated militia and the constitutional right to arms.
At the Philadelphia Convention, qualms were repeatedly expressed about the danger of standing armies in peacetime, along with a preference for maintaining the militia as an alternative to such armies.
It was also recognized, however, that a traditional militia could not by itself adequately provide for the nation’s security, even in peacetime.
Accordingly, the delegates put no significant limits on federal military authority in the constitution they proposed.38 Near the end of the Convention, however, George Mason recurred to the uneasiness he and others had expressed. Recognizing that “an absolute prohibition of standing armies in time of peace might be unsafe,” Mason proposed that the clause giving the federal government almost plenary authority over the militia be prefaced with the following words: “And that the liberties of the people may be better secured against the danger of standing armies in time of peace.”
James Madison himself spoke in favor of this proposal, arguing that the proposed addition would not actually restrict the new government’s authority, but would constitute a healthy disapprobation of unnecessary reliance on armies.
The only recorded objection, offered by Gouverneur Morris, was that this language set “a dishonorable mark of distinction on the military class of Citizens.”
During the subsequent ratification debates, the massive transfer of military authority to the federal government became one of the chief Anti-Federalist complaints. The Federalists who controlled the First Congress, however, were no more willing than the Philadelphia Convention had been to curtail federal authority in this field.
As Madison noted when introducing his initial draft of the Bill of Rights in the House of Representatives, he was averse to reconsidering “the principles and substance of the powers given” to the new government, but he was prepared to incorporate noncontroversial “provisions for the security of rights.”
Consistent with Madison’s view – though not with petitioners’ interpretation of the Second Amendment – Congress rejected proposals to put substantive limits on congressional authority over armies and the militia.
“What the First Congress was quite willing to do, and what it did do in the Second Amendment, was to make explicit the… denial of federal power to infringe the right of the people to keep and bear arms.”
Like the Mason proposal that Madison had supported at the Philadelphia Convention, though more subtly, Madison’s initial draft in the First Congress lauded the militia without diminishing federal authority to keep up standing armies, and without requiring the federal government actually to maintain a well regulated militia.
In the Madison draft, however, the comment about the militia’s value was attached to a provision guaranteeing a right of the people rather than to a provision about congressional authority to regulate the militia, as Mason’s proposal at Philadelphia had been. This created the potential for confusion, and virtually all of the modifications made in Congress to Madison’s initial draft had the effect of clarifying that the right of the people to keep and bear arms was not confined to the militia context.
That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.
Although Madison was obviously quite familiar with this proposed amendment, he offered nothing like it to the First Congress. (An unidentified Senator did offer an amendment with the same wording, which was voted down. Id. at 1151, 1152.)
First, the House deleted the reference to a “well armed” militia, which might have misleadingly suggested that the sole purpose of protecting the people’s right to arms was to ensure that the organized militia would be well armed. The text sent to the Senate read: A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Congress adopted the text that is now a part of the Constitution:
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.
This text offered nothing to satisfy Anti-Federalist desires for actual limits on federal authority over military affairs, and the only contemporaneous criticisms of the Second Amendment were complaints that it did not satisfy these desires.49 The private right protected by the Second Amendment caused no controversy, precisely because it is a private right.
The drafting history of what became the Second Amendment thus confirms that its endorsement of the traditional militia does not imply that the people’s right to arms is contingent on the manner in which Congress exercises its authority to organize and regulate the militia.
Stephen P. Halbrook is a prolific gun rights theorist and avid shooter. The brief cites his law review article entitled “The Right of the People or the Power of the State”, 26 Val. U. L. Rev. 131, 184-85, 192-94 (1991).
Justice Scalia’s opinion also referenced Halbrook extensively. Justice Scalia’s opinion is remarkable in that it shows the little known relationship between the Second Amendment, passage of the 14th Amendment and the beginnings of modern conceptions of Civil Rights that occurred when Southern Democrats enaged in vigilante attacks against black and white republicans in the South. The attacks against the newly free blacks were often initiated by house to house searches in order to confiscate weapons that were prohibited to blacks pursuant to Southern Jim Crow laws. Lynchings often ensued against blacks that resisted and white sympathizers (usually white Republicans).
C. This Court has recognized that the Constitution contains declaratory language that does not change the legal effects that the Constitution would have had without that language.
When Congress sent the Bill of Rights to the states for ratification, it described its provisions as “declaratory and restrictive clauses” meant to “prevent misconstruction or abuse of [the Constitution’s] powers.” The Second Amendment has both declaratory and restrictive elements. The words of praise for the militia in the Second Amendment are a declaration of respect for the traditional militia system, which might – or in practice might not – provide an alternative to the standing armies that many citizens feared.
As early as Marbury v. Madison, 5 U.S. 137, 174 (1803), the Court acknowledged that an entire constitutional clause might be interpreted to be without effect if 50 2 Schwartz, supra, at 1164. U.S. 316, 420-21 (1819), went even further: without claiming that the words required such an interpretation, the Court concluded that the Necessary and Proper Clause may not augment and certainly does not diminish the incidental powers elsewhere conferred by implication on Congress. Perhaps the best example of constitutional language that was not meant to change the meaning of the Constitution came from the very same draftsmen who gave us the Second Amendment. The Tenth Amendment simply reaffirms what was already established by the original Constitution. Citing relevant historical documents, this Court concluded that its purpose was simply to provide reassurance to the public that the new government was meant to be one of limited, enumerated powers:
The [tenth] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national 51 The full sentence in Marbury reads: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Petitioners quote only the first clause. Pet. Br. 17.
Thus, this Court has concluded that an entire constitutional amendment was adopted only to allay what were regarded as unfounded fears, without changing or qualifying anything in the Constitution to which it was appended. It is therefore not at all anomalous that the Second Amendment – drafted by the same Congress and adopted at the same time – includes a reassuring preambular comment that was not meant to change or limit the effects of the operative clause to which it was appended.
IV. The purpose of the Second Amendment includes protection of the fundamental natural right of self defense against criminal violence.
Respect for the original meaning of the Second Amendment requires that its language be applied – faithfully and appropriately – to contemporary society….
The fact that public debates focused on questions about the Second Amendment’s adequacy as an obstacle to tyrannical exercises of federal military power does not so much as suggest that anybody thought the new federal government did or should have the authority to disarm its citizens in the name of crime control. Such illogical inferences have long been rejected.
… fear of a tyrannical federal government – has understandably subsided. At the same time, the military power of the government has become overwhelming, which greatly diminishes the potential of an armed citizenry to deter such tyranny. It remains true that a large stock of arms in private hands raises the expected cost to the government of engaging in seriously oppressive actions, and thereby makes such oppression less likely to occur. But whereas Madison could plausibly argue that the new federal government would be incapable of raising an army capable of subduing America’s armed populace, today’s armed forces have the technical ability to inflict unthinkable mayhem on the civilian population.
Even more important, a significant gap has developed between civilian and military small arms. Eighteenth century Americans commonly used the same arms for civilian and military purposes, but today’s infantry and organized militia are equipped with an array of highly lethal weaponry that civilians do not employ for self defense or other important lawful purposes. The Constitution does not require this Court to blind itself to that post-Miller reality, or to hold that the civilian population has a right to keep every weapon that the militia can expect to find useful if called to active duty.
Nor should the Court blind itself to other contemporary realities, the most important of which is the problem of criminal violence, and the inability of the government to control it.
Rather than focus exclusively on eighteenth century comments about maintaining an armed counterweight to the armies of a potentially tyrannical federal government, the Court should recognize that the broader purpose of the Second Amendment emerges readily from the Constitution’s founding principles.
Those founding principles are summed up in the familiar liberal axioms set out in the Declaration of Independence. In liberal theory, the most fundamental of all rights is the right of self defense.
Thomas Hobbes, the founder of modern liberalism, advanced this proposition with his customary forcefulness when he acknowledged only one natural right, and described it as “the Liberty each man hath, to use his own power, as he will himself, for the preservation ofhis own Nature; that is to say, of his own Life.”
Locke stated that “[B]y the Fundamental Law of Nature, Man being to be preserved, as much as possible, when all cannot be preserved, the Leviathan”, ch. 14 (first paragraph) (1651).
See Donald S. Lutz, The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought, 78 Am. Pol. Sci. Rev. 189 (1984).
“And one may destroy a man who makes War upon him, or has discovered an Enmity to his being for the same Reason, that he may kill a Wolf or a Lion . . . .”
The SAF brief quotes several other great thinkers from the liberal tradition of freedom that developed in Western Europe during the Age of Reason.
For example the brief quotes Montesquieu:
“The life of states is like that of men. Men have the right to kill in the case of natural defense; states have the right to wage war for their own preservation.”
Blackstone in his Commentaries on the English Common Law stated:
“Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” The exchange of rights that constitutes the social contract does not diminish the central importance of the natural right to self defense. Rather, political or legal limitations on the exercise of that right must be understood as efforts to enhance the citizens’ ability to protect their lives effectively. For that reason alone, the Second Amendment should be applied vigorously with respect to governmental restrictions on the liberty of citizens to defend themselves against the violent criminals whom the government cannot control. “
This corollary to the central premise of liberal political theory is consistent with evidence about eighteenth century attitudes. William Blackstone, for example, characterized the English right to arms as a “public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
Just as one would expect from the fundamental principle of liberal theory, Blackstone makes no distinction between oppression by the government itself and oppression that the government fails to prevent. If anything, his language seems to refer more easily to the ineradicable phenomenon of criminal violence, experienced by all free societies, than to the extraordinary instances of governmental oppression that call for armed resistance.
…(T)he Pennsylvania ratifying convention proposed a bill of rights including this provision: That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and governed by the civil power.
It would be anachronistic to think that the reference to “killing game” in this proposal reflected a passion for sport. Apart from the role of hunting as a food source at that time, Americans would have been acutely aware, from Blackstone if from nowhere else, of the English game laws behind which the “preventing of popular insurrections and resistance to the government, by disarming the bulk of the people . . . [was] a reason oftener meant, than avowed, by the makers of forest or game laws.”
The Massachusetts ratifying convention proposed that the federal Constitution: be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them . . . .
The natural right of self defense is the most fundamental right known to liberal theory, and the Second Amendment is our Constitution’s most direct legal expression of Blackstone’s insight that “in vain would [basic rights such as that of personal security] be declared, ascertained, and protected by the dead letter of the laws, if the [English] constitution had provided no other method to secure their actual enjoyment.”
The brief cites Blackstones Commentaries to show that “Personal security” is listed as the first of the three great primary rights and that Washington, DC presents exactly the kind of threats which demonstrate the importance of the right to keep and bear arms under English principles of Common Law.
According to what Blackstone calls “the dead letter of the laws,” personal security must be very well assured in a city where almost nobody except agents of the government are authorized to possess an operable firearm. The reality is rather different, and nothing in the Constitution requires this Court to ignore that reality.
In the twenty-first century, the most salient purpose of the Second Amendment is to protect the people’s ability to defend themselves against violent criminals.
Accordingly, the federal government must be required to offer justifications for gun control statutes that go far beyond fashionable slogans and unsubstantiated appeals to hypothetical salutary effects on public safety. Any other approach would trivialize the fundamental right protected by the Second Amendment.
Petitioners have not satisfied the standard of exacting scrutiny to which the District of Columbia’s disarmament laws should be subjected, and this failure is fatal to their case. Nor should this Court accept the Solicitor General’s beguiling invitation to remand the case for application of some lower level of scrutiny loosely derived from an inapt analogy to governmental regulation of elections that the government itself conducts.
The D.C. Code unequivocally forbids American citizens to keep an operable firearm in their own homes for the protection of their own lives. Under no standard or review that respects the fundamental nature of the Second Amendment right could this prohibition possibly be upheld.
♦ ———————————
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted,
Nelson Lund*
George Mason University School of Law
3301 Fairfax Drive
Arlington, Virginia 22201
(703) 993-8045
*
Counsel of Record
The Law Office of Mark Knapp PLLC 