In Politico yesterday, Amherst’s Austin Sarat griped heartily about President Obama for what Sarat considers to be Obama’s insufficient hostility toward the prevailing understanding of the Second Amendment. “Despite explicit language of the Amendment,” Sarat contends, the Supreme Court has “found that it protects an individual’s right to possess a firearm unconnected with any service in an organized and sanctioned militia.” Unfortunately, he laments, Obama has “embraced” this interpretation, and, rather than using his pedestal to “educate the public about the other way to read” the right, he has elected to side “with the NRA.” Such, evidently, is the contemporary progressive instinct: “Hardly anyone seems to talk about the [Heller] decision,” Sarat contends. “None of our prominent progressive politicians attack it the way they go after the Court’s infamous campaign finance decision, Citizens United v. Federal Election Commission.”
In a narrow sense, Sarat is correct. The Left writ large does not go after Heller in the way it goes after other rulings, and neither does President Obama. Nevertheless, Sarat’s diagnosis as to why this is the case falls self-servingly short. In Sarat’s view, politicians who want stricter gun control are cowards who are being held back by the rash tide of public opinion. Were they free to say what they really want to say, Sarat proposes, America’s progressive leaders would be able to come out against the Court with impunity. And then — and only then — would the gun-controllers start to make progress.
Suffice it to say that I disagree strongly with this assessment. It is without doubt the case that many on the Left are unable to reveal their true preferences for fear of losing their next election. But this does not explain why the self-evidently absurd “individual militia” interpretation has gained so little traction in the Democratic party and beyond. What explains why the “individual militia” argument has been mostly left alone is this: It’s absolute nonsense.
As one might expect, I put little stock in the idea that Barack Obama “believes” in the Second Amendment in any meaningful philosophical way. Nevertheless, the president is by no means a stupid man, and, regardless of his personal ideological preferences, he probably has at least a working grasp of the relevant history in this area. That being so, he has presumably made the same calculation that many other gun-control advocates have made: that it is far more profitable to argue that Heller leaves ample room for his coveted reforms than it is to pretend that Heller was incorrectly decided. Evidently, President Obama and I have dramatically different impressions of what Justice Antonin Scalia meant when he determined that the Second Amendment is not infinite in scope and that some regulations are, in consequence, permissible. But, whatever our differences, we both accept that that argument is a reasonable one to have. The debate that Sarat wants us to have, by contrast, is not reasonable at all, his idea being that we eschew the hard work of discovering the contours and edges of the right-as-written in favor of the pretense that it doesn’t exist at all. Were I a betting man, I’d wager that Obama has refused to follow this course because he rightly believed that he has a much better shot of defining what “shall not be infringed” means than he does at convincing a critical mass of Americans that “right of the people” in fact means “right of the state.”
I put little stock in the idea that Barack Obama “believes” in the Second Amendment in any meaningful philosophical way.
Which is to say that, both legally and politically, Obama is proceeding far more sensibly than is Sarat, whose stated view of the Second Amendment is utterly farcical. How farcical? Consider: In order to argue with a straight face that the right to keep and bear arms is inextricably linked with “service in an organized and sanctioned militia,” you would have to believe the following unbelievable things: 1) that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power; 2) that unlike every other provision in the Bill of Rights — and every other constitutional measure that is wrapped in the “right of the people” formulation — the Second Amendment denotes something other than an individual right that can be asserted against the state; and 3) that every major judicial figure of the era was mistaken as to its meaning — among them, Joseph Story, William Rawle, St. George Tucker, Timothy Farrar, and Tench Coxe, all of whom explained the Second Amendment perfectly clearly — whereas a few judges and politicians in the 20th century have been bang on in their comprehension.
Furthermore, one has to grapple with the theory’s obvious consequences. If it is indeed the case that “a well regulated militia is necessary to the security of a free state” — and if this supposition is binding rather than explanatory — then one has no choice but to conclude that America is both insecure and unfree, and and no choice but to wonder aloud whether the government has abdicated its enumerated constitutional responsibilities to the point at which its legitimate authority must not only be called into question but supplanted by volunteers.
As Fordham’s Nicholas Johnson has noted trenchantly, presumptions such as these are flatly unsustainable in the face of sedulous investigation, and their key progenitor — the now-retired Justice John Paul Stevens — has done little but embarrass himself with their promulgation.
#share#Ultimately, Sarat’s essay represents yet another dull offering from the en vogue revisionist movement that Steven’s tendentious Heller dissent has spawned. And, ultimately, it will share the same fate. Why? Well, because as Johnson correctly judges:
Stevens’ individual militia right is simply incoherent. It is nearly impossible to imagine a realistic scenario that triggers it. The majority [in Heller] captures the problem this way: “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.” In another permutation, Justice Scalia chides that Stevens’ formulation is “worthy of the Mad Hatter”.
Stevens’ supposed individual militia right really is just a carbon copy of militia duty. His historical examples of the “right” in operation are all just duties. Militiamen could be required to possess certain arms and accoutrements, to enroll, to muster, to military discipline, to risk and even sacrifice their lives in service of the state. By eliding the fundamental distinction between militia as duty and arms as right, Stevens renders an empty and incoherent version of the Second Amendment.
Which, of course, is precisely the point of the exercise.
Given the way in which the amendment is written, the linguistic shenanigans in which Stevens, Sarat and co. are indulging were probably inevitable from the outset. Indeed, in 1898, Justice Thomas M. Cooley seems to have seen Justice Stevens coming. Cooley — who was just one in an unbroken line of 19th-century judicial scholars who understood that the amendment protects an individual right of the people — worried aloud that the prefatory clause might come incorrectly to be seen as binding. “The right,” Cooley wrote emphatically, “is general.” Nonetheless, he presciently imagined that others would incorrectly argue otherwise:
It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon. . . . If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision 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.
President Obama is not incompetent for refusing to take Cooley’s mis-supposition seriously; he is politically and legally smart. That Austin Sarat believes that flagrant dishonesty and the rewriting of plain history would represent a better course for the president to take should tell us a great deal about how he sees the American public — and a good deal about Sarat’s integrity, too.