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Maybe the Second Amendment doesn’t quite say what so many think

DANIEL A. COTTER
Law Bulletin columnist

Published: October 25, 2017

The recent Las Vegas shooting perpetrated by Stephen Paddock, which resulted in 59 deaths and hundreds of injuries, rekindled debate regarding the Second Amendment to the U.S. Constitution and gun control.

The National Rifle Association at first appeared willing to consider regulations of bump stocks, but subsequently backed away from that position. This column focuses on the Second Amendment.

The amendment

The Second Amendment provides:

“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.”

The Second Amendment is the only one of the Bill of Rights that has a condition or rationale for it. The other Bill of Rights amendments are all unconditional:

First — “Congress shall make no law…”

Third — “No soldier shall…”

Fourth — “The right of the people to be secure … shall not be violated…”

Fifth — “No person shall…”

Sixth — “the accused shall enjoy the right to a speedy and public trial… ”

Seventh — “the right of trial by jury shall be preserved… ”

Eighth — “Excessive bail shall not be required… ”

Ninth — “shall not be construed… ”

Tenth — “The powers not delegated … are reserved…”

The first Congress knew how to make provisions unconditional. For the Second Amendment, it added the words at the beginning, conditioning the provision to a specific purpose.

Justice Hugo L. Black may have been the only pure originalist, or textualist, on the Supreme Court, arguing repeatedly that the First Amendment was absolute and that it contained no conditions but rather prohibited any act by Congress to limit the six rights contained within the First Amendment.

Notwithstanding Black’s position, the Supreme Court has imposed limitations and exceptions to the rights enumerated in the First Amendment and the other unconditional Bill of Rights.

Interpreting the amendment

In a Washington Post opinion piece, “The five extra words that can fix the Second Amendment,” by Supreme Court justice John Paul Stevens (April 11, 2014) the justice examined the history of the Second Amendment and its interpretation prior to the Supreme Court’s decision in District of Columbia v. Heller, stating:

“For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated Militia.’”

Stevens then examined how that decision and jurisprudence stood for many years, in spite of the National Rifle Association’s vigorous campaign claiming that federal regulation of firearms violated the Second Amendment.

Stevens cited the quote of retired chief justice Warren E. Burger that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

Stevens noted that the Heller decision, and the subsequent Supreme Court decision McDonald v. Chicago (holding that the Second Amendment was incorporated through the 14th Amendment to protect Second Amendment rights by infringement by the states) did nothing to prevent Congress from establishing stringent assault weapon bans or controls or for enforcing stricter background check rules.

In Heller, justice Antonin G. Scalia, who had always been considered an originalist or textualist regarding constitutional interpretation, wrote for a 5-4 majority that the prefatory “well-regulated militia” language of the Second Amendment addressing the reason for the amendment, does not otherwise limit the operative clause.

“But apart from that clarifying function,” Scalia wrote, “a prefatory clause does not limit or expand the scope of the operative clause.”

The Heller court conceded that “this structure of the Second Amendment is unique in our Constitution,” but dismissed that uniqueness on the basis that “other legal documents of the founding era, particularly individual rights provisions of state constitutions, commonly included a prefatory statement of purpose.”

In his Heller dissent, Stevens addressed the prefatory language of the Second Amendment and asserted that every provision in the U.S. Constitution matters. He rejected the majority’s basis for its decision.

“The opinion the court announces today,” Stevens declared, “fails to identify any new evidence supporting the view that the amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the court stakes its holding on a strained and unpersuasive reading of the amendment’s text.”

Stevens then cited to existing individual rights in various state constitutions and noted the similarities of the language in the Second Amendment to rights in Virginia, Maryland, Delaware and New Hampshire, which all expressly provided the right to bear arms for purposes of maintaining a militia.

Stevens compared that language to the rights in Pennsylvania and Vermont, which both provided for the right to keep and bear arms to protect the gun holders and for militia purposes.

Stevens in his Washington Post article suggested the way to correct the Second Amendment to make it conform to the original intent of its draftsmen would be to make it clear that the right is for purposes of maintaining a well-regulated militia. Stevens’ revision would read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Conclusion

While the amendatory language Stevens suggested is not likely to become reality, it seems an appropriate argument to firmly posit that the one amendment of the original Bill of Rights that has conditional prefatory language should have some limits to its scope.

The NRA would perhaps respond by paraphrasing the statement famously declared by Scalia in connection with the decision of the Supreme Court in Bush v. Gore — “Get over it.”

Daniel A. Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@butlerrubin.com.


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