Emerson’s Second Amendment
by Stephen P. Halbrook
Originally published in 2001 at www.independent.org
In “Guns and the Constitution” (Writ, Nov. 2), Akhil and Vikram Amar offer creative insights about the right to keep and bear arms that provoke us to reexamine our premises. Much of the thesis is valid. However, portions rely on a skewed analysis of the constitutional text, and its tone is unduly harsh on the historical analysis set forth by the U.S. Court of Appeals in United States v. Emerson, 2001 U.S. App. LEXIS 22386 (5th Cir. 2001).
The Amars suggest that Emerson reached the right conclusion “in recognizing an individual right and in deeming it nonabsolute,” but “the court told the wrong constitutional story.” While they persuasively show that the story is bigger, it is worth noting that the story has not been told at all before by any other of the courts of appeals. Most are still in Second Amendment denial.
First, let’s get the facts straight. The defendant was not charged with “brandish[ing] a firearm against his estranged wife in violation of a federal statute.” The federal charge is that he possessed a firearm after a domestic restraining order was entered against him. There was a separate state prosecution for brandishing, of which the jury acquitted Dr. Emerson.
We are told that the Second Amendment does not compel an individual rights reading. To “bear arms” refers to military service, not carrying guns merely for hunting or sport. “The Emerson court found only one clear nonmilitary use of the phrase before 1789.” Not so. The Pennsylvania Declaration of Rights (1776) recognized “that the people have a right to bear arms for the defence of themselves and the state.” Vermont repeated this language. This included the right, wrote James Wilson, “to keep arms for the preservation […] of their own persons.”
Jefferson drafted a bill which Madison proposed to the Virginia legislature in 1785 punishing a game-law violator if he should “bear a gun out of his inclosed ground, unless whilst performing military duty.” The Minority in the Pennsylvania convention of 1788 declared “that the people have a right to bear arms for the defense of themselves […] or for the purpose of killing game […].” To “bear arms” simply means to carry arms.
And what about the separate right to “keep” arms, which no one has asserted is a military term? Samuel Adams proposed in the Massachusetts convention “that the said Constitution be never construed to authorize Congress […] to prevent the people of the United States, who are peaceable citizens, from keeping their own arms […].”
The facts that “militia” is a military term and that the Amendment “flanks the Third Amendment,” which concerns troop quartering, mean little. It also flanks the First Amendment. Moreover, the text meticulously refers to the “militia” in certain parts and to “the people” in others. Indeed, the Fifth Amendment provides for indictment by a grand jury except in cases arising, inter alia, “in the militia, when in actual service in time of war or public danger.”
Which brings us to the Amars’ thesis that “the Amendment speaks of a collective ‘people,’ not individual ‘persons.’” It seems that “the people” means “voters and jurors, rather than all citizens.” True, the Preamble refers to “We, the people,” but the voters did not “ordain and establish” the Constitution, “the conventions of nine States” did, as Article VII notes. And while Article I provides that the members of the House of Representatives shall consist of “members chosen every second year by the people of the several States,” the fact that the States set qualifications for voting did not constrict the meaning of “the people” in the Bill of Rights.
The First, Second, and Fourth Amendments refer to “the right of the people” “peaceably to assemble,” “to keep and bear arms,” and “to be secure […] from unreasonable searches and seizures.” The Amars confuse “rights,” which only individuals exercise, with “powers,” meaning governmental functions. In referring to the “powers […] reserved to the States respectively, or to the people,” the Tenth Amendment means exercises of authority. These powers include – as Akhil Amar has written elsewhere – the ballot box, the jury box, and the cartridge box (the militia).
At the Founding, the Amars state, “women, children, and aliens fell outside this core definition of voting ‘people.’” But this was true only of the “powers” exercised by the people, such as suffrage, the jury, and the militia. No one denied that women were among “the people” who had “the right” to keep arms or to be secure in their houses from unreasonable searches.
Nor does the syntax of the Second Amendment suggest that the “militia” and the “people” are “roughly speaking, synonymous.” While the Framers favored a militia “composed of the body of the people,” the fact that “militia” and “the people” were used in a single sentence precludes an interpretation that the terms are redundant. It is the “right” of individuals to have arms that encourages and provides a reservoir for the “power” of a well regulated militia.
The Amars are on target in averring that, according to the Founder’s vision, voters would serve in the militia, and that both juries and the militia would consist of one’s peers. But it is a false dichotomy to suggest that the Amendment “confers a collective military right rather than an individual nonmilitary one.” The Amars state: “The Founders were thinking of local militiamen like those who fought at Lexington and Concord – not of hunters or sportsmen.” But through hunting and target shooting, those militiamen honed their shooting skills.
In the words of Lt. Frederick MacKenzie, one of the Redcoats routed at Concord: “These fellows were generally good marksmen, and many of them used long arms made for Duck-shooting.” Concord militia Colonel James Barrett’s 15-year-old granddaughter Meliscent told a British officer that the colonists could resist because “they would use powder horns and bullets – just as they shot bear.”
While the serious federal purpose declared is “the security of a free state,” not sport, this security is also protected in part by individuals who arm themselves to resist violent crime. In debates on the 1792 Militia Act, Roger Sherman “conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made.” The States, “like private citizens, have a right to be armed, and to defend” themselves.
The Amars detail the expansion of rights won by the Reconstruction Amendments. They mention legislation accompanying the Fourteenth Amendment recognizing the right of all, blacks as well as whites, to be armed in one’s home for self protection. This was the Freedmen’s Bureau Act of 1866, which declared that all citizens shall have the “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and […] estate, real and personal, including the constitutional right to bear arms.”
The Amars fault Emerson for ignoring the Fourteenth Amendment, the tinted glasses through which we view the Bill of Rights today. However, Emerson does quote Senator Howard’s speech introducing the Fourteenth Amendment, whose privileges-and-immunities clause protected “the personal rights guarantied and secured by the first eight amendments of the Constitution; such as […] the right to keep and to bear arms […].” Emerson also quotes recent Supreme Court opinions on the Fourteenth Amendment which position the Second Amendment in an equal status with the other provisions of the Bill of Rights.
Emerson is also faulted because it “blandly cited parts of the Supreme Court’s infamous 1857 Dred Scott case” without noting that it was overruled by the Fourteenth Amendment. Yet Scott was cited with other Supreme Court cases to indicate that court’s mention of the Second Amendment as a right of “the people.” Emerson refers to the page asserting that citizenship would give blacks free speech and the right “to keep and carry arms wherever they went.” Scott v. Sandford, 60 U.S. 393, 417 (1857).
Emerson does not involve State action and thus could not be expected to include a full blown analysis of the Fourteenth Amendment. The proper relation between military service and the later Amendments expanding voting rights to blacks, women, and 18-year-olds raise intriguing philosophical questions. But one could hardly expect a court of appeals to engage in such speculations in order to decide whether a prohibition on possession of a firearm while under a domestic restraining order violates the Second Amendment.