The Right to Keep and Bear Arms in the States: Ambiguity, False Modesty, and (Maybe) Another Win for Originalism

Article excerpt

District of Columbia v. Heller (1) was an easy case to get right. First, there was the text of the Second Amendment, which plainly states that "the right of the people to keep and bear Arms, shall not be infringed." (2) Second, there was history, much of it created by citizen-soldiers who had just won their independence--and knew they would have to keep fighting for it--with guns. Next were the reams of academic scholarship from across the ideological spectrum that had come to establish the individual rights interpretation as the "standard model" of the Second Amendment. (3) Finally, there was the sheer unpersuasiveness of the arguments on the other side, which Judge Alex Kozinksi once described as having "the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it." (4)

Another question that should be easy--and for most of the same reasons--is whether the right to keep and bear arms applies against the states. The Supreme Court did not address that issue in Heller because the District of Columbia is a federal enclave to which the Bill of Rights, and thus the Second Amendment, applies directly. By contrast, if the federal Constitution does protect a right to keep and bear arms against state infringement, it can only be through the Fourteenth Amendment, an issue Heller specifically eschewed. (5) The question has now been presented to the Supreme Court. (6)

The short answer is yes, the Fourteenth Amendment does protect an individual right to keep and bear arms from state infringement--emphatically so. But there are two paths to that result, only one of which reflects the spirit of originalism for which Justice Scalia's Heller opinion has been justly praised. The originalist approach would require the Supreme Court to confront a 136-year-old mistake that pits history and the text of the Constitution against the false modesty of government-favoring judicial restraint. This Article argues that the Court should take the originalist path as a matter of principle and that there may never be a better chance to do so.

I.

Lawyers, including ones who have become judges, have a knack for finding ambiguity where convenient. But constitutions necessarily speak in terms that are often broad and conceptual rather than narrow and specific. Moreover, because language is not static, words or phrases whose meaning was clear when drafted can grow less so with time, creating opportunities for later generations to proclaim ambiguity where none originally existed. Unfortunately for the body politic, ambiguity-driven minimalism plus government-friendly judicial restraint is like mixing booze with sleeping pills: a dangerous and lethargic combination.

Take the text of the Second Amendment. There is nothing remotely ambiguous about the imperative "shall not be infringed." Yet, until Parker v. District of Columbia (7) in 2007, no federal appellate court had ever used the Second Amendment to protect gun ownership. In fact, most circuits had rejected the individual rights interpretation either explicitly or implicitly, evidently on the basis of perceived ambiguities in the text. (8) Two of the most commonly cited sources of ambiguity in the Second Amendment are the phrases "well regulated Militia" and "keep and bear." (9)

It is fair to say that both phrases are archaic. For example, a Westlaw search for all cases containing the phrase "keep and bear" without "arms" or "firearms" produces twenty-nine cases, all of them involving either a "keep and bear harmless" indemnity provision, actual live bears, or, most recently, a sexual harassment case featuring a stuffed toy bear that made obscene noises when squeezed. (10) Similarly, the phrase "well regulated Militia" includes an adjectival phrase--"well regulated"--that is no longer used in standard English and a noun--"Militia"--that many people mistakenly equate with today's National Guard. (11) The National Guard is an organized fighting force subject to federal control that founding-era Americans would likely have considered to be a standing army--precisely the force that citizen militias were meant to oppose if necessary to prevent tyranny. …