Politics & Policy

We Need to Update the Second Amendment

(Rebecca Cook/Reuters)
The ‘militia’ clause confuses modern Americans. Let’s clarify it to secure the individual right to keep and bear arms.

In reaction to shootings by an emotionally disturbed young man at a Florida high school and the subsequent paroxysm of gun-control protest, retired Supreme Court justice John Paul Stevens, writing in the New York Times, proposed that the Second Amendment be repealed. Stevens is hardly the first to make such a proposal — the Times’ Bret Stephens and the Brooking Institution’s Benjamin Wittes, among others, have as well. But Justice Stevens’s prominence and the response to his position have brought national attention to the Second Amendment of the Bill of Rights.

Many modern Americans find the language of the Second Amendment confusing. Justice Stevens’s proposal gives us occasion to focus on the text of this clause, which, as a constitutional provision, should override any other legal action on the subject of firearms in the United States. This examination shows us why the Second Amendment is so misunderstood, and that it needs to be updated.

The Second Amendment consists of two phrases. It begins with a prefatory clause: “a well-regulated Militia, being necessary to the security of a free State.” Then comes the main clause, “the right of the people to keep and bear Arms, shall not be infringed.” The confusion is mostly about the meaning and effect of the prefatory clause. Is the reference to the militia simply an interesting preamble, as some gun-rights advocates argue, or does it limit and define the rest of the provision, as Justice Stevens and other gun-control proponents maintain?

In a 1939 case, United States vs. Miller, the Supreme Court basically ruled that the preface had more weight than the main clause, that the Second Amendment restricted the federal government’s interference only with state militaries such as the National Guard. This interpretation was, and still is, embraced by the legal elites. Of course gun-rights advocates reject this view, arguing that the Second Amendment is meant to protect individuals’ right to own weapons independent of military service. (The Miller case was problematic on many levels besides its questionable interpretation of the Second Amendment. For example, Miller’s public-defender attorney could not afford to travel to Washington, so the Supreme Court heard only the government’s side of the case.)

The same professors, activists, and politicians who claim to seek out the broadest possible interpretation of the rest of the Bill of Rights promote the most restrictive, crabbed possible reading of the Second Amendment.

However, in 2008 and 2010, by a 5–4 vote, the Supreme Court held in two cases, Heller vs. District of Columbia and McDonald vs. Chicago, that there was indeed an independent right to own at least some weapons. Justice Stevens, then still on the Court, dissented in both cases, asserting that the Second Amendment was limited to members of the now non-existent state militias.

The debate turns on what the framers of the Second Amendment meant by their reference to the militia. One of the ironies of Second Amendment jurisprudence is that all sides are originalists. On gun control, professors, activists, and politicians who otherwise proclaim that judges should be able to freely reinterpret the Constitution so it can evolve with changing times suddenly claim to be faithfully immersing themselves in the thinking of the Founders’ generation of the late 18thy century. Another irony (none dare call it hypocrisy) is that the same professors, activists, and politicians who claim to seek out the broadest possible interpretation of the rest of the Bill of Rights promote the most restrictive, crabbed possible reading of the Second Amendment. (On this point see Sanford Levinson’s seminal 1989 Yale Law Journal article “The Embarrassing Second Amendment.”)

For modern Americans, understanding this prefatory clause is difficult because we no longer have militias as they were constituted in 1791. In that era, every man was expected to be available to defend the community. The classic image of the militia from this time is the Minuteman, responding on short notice to join with his neighbors to fight the British. The tradition of the militia continued in popular culture in westerns, where members of the community would quickly rally to join a posse to chase the bad guys. In both cases, it was understood that the Minuteman or posse member would already have his own weapons (in those times it was always a “he”). However, in our time, a permanent military and professional police forces have taken over the functions of the early militias. Does this mean that the Second Amendment is now obsolete and effectively inoperative, as Justice Stevens and others argue, because government has become so powerful and extensive that it now fulfills the self-defense purposes of the old militias?

In CNN’s phony “town hall,” held before an audience of jeering students, held shortly after the Parkland mass shooting, a hostile teacher asked NRA spokeswoman Dana Loesch about the meaning of the Second Amendment’s militia clause. In her reply, between the catcalls of the students, Dana made a critical point. This is that the framers of the Second Amendment had a broader understanding of the term “militia” than simply the fellows who would gather on the village green occasionally to drill together. The “militia” consisted of all the adults of the community capable of bearing arms.

Dana quoted George Mason, who in the debate in Virginia’s Ratifying Convention, in 1789, said, “I ask, Who are the militia? They consist now of the whole people, except for a few public officers.” The best expression of this broader understanding, however, comes probably from the First Congress, in the House of Representatives’ original draft of what would become the Second Amendment. It provided that “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” (emphasis added).

The phrase did not come out of nowhere. It also appeared in, among other places, the Virginia Declaration of Rights. In the First Congress, the Senate dropped the reference to the “body of the people” without explanation, probably because the double reference to the “people” seemed redundant, and because in 1789 everyone understood that the “militia” consisted of all the individuals in the entire community, not just those who happened to be in a military unit. If the term “militia” is understood in this more expansive, democratic sense, it certainly can be compatible with, and even require, an individual right to possess firearms.

The Constitution is very easy to amend. All it takes is five votes on the Supreme Court. Such judicial amendments are completely illegitimate, but the Supreme Court has been making them since the Dred Scott decision in 1857.

With a strong historical case that the correct original meaning of the Second Amendment is an individual right rather than one limited to the military, and two recent Supreme Court rulings to back it up, why worry? In addition, as Jay Cost has pointed out here at NRO, the Constitution is very hard to amend, so the threat that the Second Amendment might actually be repealed should be nugatory.

Except that it isn’t.

With due respect to Cost, the Constitution is very easy to amend. All it takes is five votes on the Supreme Court. Such judicial amendments are completely illegitimate, but the Supreme Court has been making them since the Dred Scott decision in 1857. I hope it will not offend the tender sensibilities of NRO readers if I assert that the Left will not hesitate to achieve its policy goals through litigation and judicial amendment, even if that means ignoring or grossly distorting the Constitution. And the Heller and McDonald decisions, along with Citizens United vs. FEC, are certain to be the top targets for reversal if the Left ever gets a fifth vote on the High Court.

It makes no practical difference that the military-only interpretation of the militia preamble to the Second Amendment is historically inaccurate and legally misguided. That has never stopped the Left before. And the militia preamble gives the Left all the hook it needs, however erroneously, to drag down our constitutional right “to keep and bear Arms.”

How do we prevent such an illegitimate judicial amendment repealing, for all practical purposes, the Second Amendment by interpreting it out of existence? I, for one, am not comfortable relying on one-vote majorities on the Supreme Court and extraordinarily narrow Republican presidential victories for the long-term security of my Second Amendment rights. Ironically, Justice Stevens has offered the solution. Rather than amending the Constitution to repeal the Second Amendment, we should amend the Second Amendment to update and clarify it for our times.

What would such a reform consist of? First, we should remove the outdated prefatory reference to the militia, thereby eliminating the Left’s rationale for judicially amending the Second Amendment out of existence. Second, we should try to define general guidelines for government regulation of firearms that are consistent with an individual right to self-defense. These might align with current gun laws that are supported by the National Rifle Association.  My own formulation is to allow only “regulations restricting possession by persons convicted of a felony, or individually found by due process to be a threat to public or personal safety, or to ensure public safety in the use of firearms.” However worded, such restrictions could calm the current bitter argument by reflecting the broad consensus that law-abiding citizens have the right to possess firearms, but allowing limited public-safety controls over their use and who uses them.

Admittedly, our Constitution is one of the most difficult in the world to formally amend. While I and others have proposed reform of the amendment process, even under the current cumbersome procedures of Article V, it is still theoretically possible to amend the Constitution. More important, public debate of possible revision can focus discussion on a correct understanding of our right to keep and bear firearms. For many gun-rights advocates, the Second Amendment has become a kind of talisman. However, what is critical is not misunderstood 226-year-old words but the inherent right underlying them. One cannot always play only defense. An offense is generally ultimately necessary for victory. A drive, however long-term, to reform and clarify the Second Amendment is the ultimate way to assure that we can continue Madison’s boast, in Federalist No. 46, that the United States will always remain different from other nations whose “governments are afraid to trust the people with arms.”

James W. Lucas — James W. Lucas is an attorney in New York City. He is the author of Fifty States, Not Six: A Bipartisan Approach to Reforming the Electoral College and Assuring That Every Citizen’s Vote Counts and Are We the People? How We the People Can Take Charge of Our Constitution, which includes a draft of a proposed anti-gerrymandering constitutional amendment.

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