On Second thought

In affirming right of individuals to own firearms, Justice Department reverses decades of official government policy

May 11, 2002

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.

-- Second Amendment to the U.S. Constitution

The U.S. Department of Justice on Monday asked the Supreme Court not to hear two cases claiming federal firearms law violates the Second Amendment.

One case involved a man who deliberately invited arrest for the possession of two machine guns; the other, a man who had a gun although he was under a domestic-violence restraining order.

In briefs filed by Solicitor General Theodore Olson, the department argued that both cases concerned "reasonable restrictions" on the right to bear arms -- to keep guns out of the hands of people unfit to have them, or to limit possession of certain kinds of guns particularly liable to misuse.

What has sent gun-control advocates into shock is that Olson explicitly stated the rule to which these are reasonable exceptions: The Second Amendment broadly protects the rights of individuals to keep and bear arms, whether or not they are members of an organized militia.

In other words, the government has switched sides on one of the most contested issues of the day. Olson acknowledged that in earlier briefs filed in these cases, when they were before the appeals court, the government had relied on the opposing view that the Second Amendment protected only weapons possession plausibly related to the efficiency of the militia.

Note that the department argued for the same conclusion -- these particular provisions do not violate the amendment -- under both of these incompatible interpretations. That suggests the practical consequences of its decision may be less dire than critics fear. After all, no one doubts that the First Amendment protects an individual right to free speech, yet that has not kept legislatures from enacting, or courts from upholding, reasonable restrictions on the time, place and manner in which individuals exercise their right.

The Supreme Court last ruled on the Second Amendment in a somewhat ambiguous 1939 case, U.S. v. Miller, which has been cited in support of both positions. That decision turned in part on the question of whether a sawed-off shotgun was likely to contribute to the effectiveness of a militia, but it also acknowledged that historically the militia included all males physically capable of service.

That unresolved constitutional question was largely ignored by legal scholars until a 1989 law-review article by Sanford Levinson of the University of Texas at Austin revived it. He argued, with some reluctance -- he titled his article "The Embarrassing Second Amendment" -- that the assumption that the Second Amendment refers to a collective rather than an individual right was quite possibly mistaken and at the least deserved a great deal more critical attention than it had been getting for half a century.

Of course politics has a lot to do with how people choose to read the amendment. But politics aside, this amendment differs from other parts of the Bill of Rights in having an introductory clause, "A well regulated Militia, being necessary to the security of a free State, . . ." In contrast to the individualist view, that clause could imply the collectivist interpretation that "the right of the people" refers exclusively to people enrolled in the militia, or alternatively to the right of the states to organize such a militia.

But such a reading is inconsistent with many other contemporary documents containing similar introductory phrases that cannot possibly be understood as referring to any kind of collective right, says Eugene Volokh of the University of California at Los Angeles, who collected dozens of examples in various state constitutions. (He called his 1998 article "The Commonplace Second Amendment," alluding to Levinson's earlier work. Both are available online, with links to relevant court cases.)

In this view, the introductory clause resembles the "whereases" that preface much legislation. They help to determine legislative intent, and courts may use them for that purpose. But they are not part of the law itself, and are subordinate to the actual language of the law in case of conflict. Even if they are later proved wrong, that does not invalidate the law, nor allow judges to discard a law on grounds that the original justifications for it no longer apply.

This growing body of scholarship has begun to influence the courts, no less than the Justice Department. In the domestic-violence case that occasioned one of Olson's briefs, Emerson v. U.S., the district court initially dismissed the indictment against Emerson, accepting his claim that the Second Amendment guarantees an individual right to have firearms. The 5th Circuit Court of Appeals discussed the Second Amendment at length, concluding that it does protect the right of private individuals "to keep and bear their private arms as historically understood in this country," but subject to "limited, narrowly tailored exceptions" such as the one regarding restraining orders.

The revival of the right to keep and bear arms as belonging to the individual citizens of a free society no more threatens the security of the republic now than it did when it was adopted along with the rest of the Bill of Rights. Volokh quotes then-Sen. Hubert Humphrey, who said in 1960, that it "is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible."