A Stitch in Haste

At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.”

–Parker v. District of Columbia

As you may have heard by now, a tremendous victory for individual rights and Constitutional textualism was handed down Friday by a federal appellate court.

The case, Parker v. District of Columbia, 04-7041 (D.C. Cir., Mar. 9, 2007) (PDF – 75 pages) overturns an obnoxious, indeed insane, gun control law in the District of Columbia that, inter alia, made it a (federal) crime simply to carry a firearm from one room of your house to another. The constitutional question that the case presents is simple:

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.

So the question becomes, does the first part of the Amendment limit the second part? Is the right to bear arms limited only to bearing arms for the purpose of serving in a militia, or is it more expansive?

The question is all-important, for the pesky reason that we don’t have militias anymore, but rather a (federally equipped) National Guard. If the prefatory clause is limiting, then the Second Amendment is now a dead letter. Several federal appellate circuits have said exactly that. One federal circuit and several state courts have said the opposite.

I have very little more to say on the Second Amendment question. You hopefully will not be surprised to learn that I embrace the majority opinion in Parker wholeheartedly and enthusiastically.

I want to focus on something else:

“In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — ‘the people.’ That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.”

The decision then traces how it would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted “collective right,” which is exactly what opponents of the Second Amendment try to do. “The people” means, well the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states — persons!

More:

We believe the canon of construction known as noscitur a sociis applies here. Just as we would read an ambiguous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.

Noscitur a sociis (“a word is known by the company it keeps”) simply means this: If a blob of text has the word “Apple” ten times, then you don’t get to pretend that it means “Apple as in fruit” nine times but “Apple as in Steve Jobs” once and only once, when it suits you. It is facially absurd, and utterly sloppy constitutional interpretation, to pretend that “the people” means “individuals” everywhere in the Constitution except the one place where you want it to mean “a state government.”

Will the Supreme Court review, and possibly overturn, the D.C. Circuit opinion? Maybe, maybe not.

Meanwhile, one wonders (hopes?) whether any jurist might make the same argument about the Ninth Amendment? If “every Amendment counts” and “the people” unambiguously means individuals, then isn’t it time to end this unforgivably insolent reasoning that the Ninth Amendment is an “inkblot” or a “mere rule of interpretation” and not a self-standing font of individual liberties separate and co-equal with the rest of the Bill of Rights?

—

Meanwhile:

There is another, intriguing alternative. A few scholars have argued that the Second Amendment is actually incorporated through the privileges and immunities clause, not the due process clause. According to these scholars, the privileges and immunities clause was designed, in part, to ensure that freedmen had access to arms so they could not be re-enslaved by the southern states. The obvious weakness in this argument is that the privileges and immunities clause has been moribund since the Slaughter-House Cases were decided more than 130 years ago. But it is not unthinkable that the Court could breathe new life into that provision.

The Slaughterhouse Cases, 83 U.S. 36 (1872) ranks Number Two on my list of Worst Supreme Court Cases, and for precisely this reason (i.e., that it delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government). In the process, the Supreme Court rendered an entire provision of the Constitution a nullity less than five years after it had been enacted. How’s that for “judicial activism”? How glorious it would be if the Court were to revive the Fourteenth Amendment Privileges or Immunities Clause.

But I am of course not optimistic. Debates over competing theories of constitutional interpretation and respect for precedent notwithstanding, the clear majority trend amond judges at all levels is to choose expansive government over limited government, and “collective” rights (i.e., the authority to oppress) over individual rights. Victories such as Parker are the exception, not the rule.