Synthesizing Bruen, Heller, and NFIB v. OSHA: The Relevance of the Original Version of the Second Amendment

Should the original version of the Second Amendment matter, if it was not the version sent to the states for ratification? The original draft of the Amendment that the House debated and voted to adopt included a clause, omitted from the later Senate version, protecting the rights of those “religiously scrupulous” of bearing arms.  In District of Columbia v. Heller, Justice Scalia called this the “conscientious objector clause,” and sections of the majority opinion and Justice Stevens’ dissent discussed it at some length.  In NYSRPA v. Bruen, the Court held that Second Amendment cases should turn on historical arguments and evidence, not balancing of legitimate state interests and private rights.

The question is whether the original versions or drafts of the Second Amendment are part of that history – not the whole history, but one part that deserves some attention.  At the beginning of his discussion of the original version of the Second Amendment, Justice Scalia mentions, “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.”  Scalia proceeds to do just that – discussing the deleted provision at length and construing it to support his idea that the Amendment protects an individual right to keep and bear arms for self-defense.

By saying “it is always perilous to derive meaning,” Justice Scalia seems to be referring to a traditional canon of construction that there is a weak presumption of deliberateness when the legislature drops language from an earlier draft version of a bill on the way to final enactment. Courts sometimes draw a dispositive negative inference about verbiage discarded as an enactment moves through the legislative process. One recent example is the 2019 Federal Circuit case Dai Global v. Administrator of USAID.  There, the Civilian Board of Contract Appeals had followed language that had been in the Senate version of the relevant statute, but had dropped out when the bill went through the House (the final conference committee version followed the House wording, and was enacted). The court held: “It is axiomatic that a statute should not be read to implicitly include language specifically rejected by Congress.” (See also  Acosta v. Local Union 26, Unite Here, in which the First Circuit inferred legislative deliberateness, and therefore intent or meaning, from the fact that a clause dropped in the enactment process.)

At the same time, cutting text from draft legislation may signal that the legislators thought the provision was redundant with the remaining verbiage or with existing law.  As the Massachusetts Supreme Court explained in Mercy Hospital v. Rate Setting Commission, “The disappearance of a provision during a legislative journey to enactment does not establish the contrary to be the law, especially when it appears on fair analysis of the final text that the provision would have amounted to surplusage.” 

In the case of the conscientious objector clause in the original version of the Second Amendment, it is purely a matter of speculation whether the Senate omitted the clause because it disapproved of it, or because it thought the same idea was already stated or implied in other parts of the original Constitution or the Bill of Rights, such as the Free Exercise clause of what became the First Amendment (both of these views were expressed by some members of the House when they debated the clause, though the majority of that body voted to keep the language). It is also possible, in theory, that the omission was inadvertent at some key juncture (a scrivener’s error).  My personal view is that the Senate thought exemptions for conscientious objectors could be left to the state legislatures and Congress, as it had become the norm before the War of Independence for colonies to include in their militia acts some kind of exemption for conscientious objectors (often requiring them to pay the cost of hiring a substitute).

At the same time, Justice Scalia overstated his point about this.  This was not a “provision deleted in the drafting process” in the usual sense of a bill markup by a drafting committee, or even a proposed floor amendment that failed to garner sufficient votes during the floor debates (a phenomenon that did, however, occur during the House debates on the Second Amendment, with a proposal to amend or delete the conscientious objector clause).  Instead, this clause was in the final version that the House voted on and approved, after lengthy deliberation about the clause itself.  The fact that the House later acquiesced to the streamlined version the Senate sent back (several of the Amendments, in fact, had their wording tightened up) could have been due to their concern about delaying or disrupting the process once the Senate seemed poised to finally send the still-controversial Bill of Rights to the states of ratification. 

Given the absence of any indication of why the Senate dropped the language, our main window into what Congress was thinking, besides the House debates, is the fact that the House very deliberately, and repeatedly, voted to keep the conscientious objector clause – first in voting down proposed floor amendments, and then in voting to adopt the Amendment with the language included. Nearly all the discussion in Congress focused on this clause, and no one objected that it was off-topic or unrelated to the intent of the rest of the Amendment. Instead, the discussion suggests they indeed thought it created a substantial exception to whatever the rest of the Amendment would accomplish, and they were not sure they wanted this exception to have constitutional status versus being a feature of state statutes.

The Court’s originalist methodology continues to evolve, and one example relevant to this discussion is the Court’s recent “vaccine mandate” case, NFIB v. OSHA. There, the majority opinion twice highlights a resolution, passed by only one house of Congress, that supported the majority’s view and was unfavorable to OSHA: “In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.” Returning to this point later in the opinion, it said, “Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation.” 

This “majority vote of the Senate” was part of an unsuccessful attempt to invoke the Congressional Review Act (CRA) – the legislative veto protocol that replaced the one struck down in INS v. Chadha. The CRA requires a resolution vote by each chamber and signature by the President (this process rectifies the bicameralism and presentment problems Chadha found with the previous legislative veto).  In this instance, the Senators voting for the resolution knew at the time that it would not pass the House, and that President Biden would never sign it (he had asked OSHA to create the vaccine rule in the first place). This made the Senate vote a politically costless opportunity for political theater, an otherwise empty symbolic gesture.  The Senators who voted for the resolution did not have to worry about political accountability if adverse events resulted from their vote, because they knew the resolution would have no real-world effect. 

The Court’s reliance on the Senate resolution in NFIB v. OSHA may signal a shift, as one small part of its evolving originalist jurisprudence, about the relevance of pre-enactment drafts.  If so, the Congressional debates, and the conscientious objector clause itself, may have new importance for Second Amendment cases.  This is not to say that the House version of the Second Amendment is binding – the states ratified the language that emerged from the complete process after the Senate mysteriously shortened it – but it does support the idea that the House version is at least relevant for discussion of the text and history, as there is no historical indication that the Senate disapproved of the clause – they may have thought it was simply unnecessary because it was so obvious.  Of course, it is possible to distinguish an unsuccessful attempt at a legislative veto from a pre-enactment draft of a constitutional amendment. NFIB v. OSHA uses the Senate resolution as evidence of regulatory overreach, not as evidence of the meaning of a statute or law.

It will be interesting to see if the Court’s expanded reliance on legal history for Constitutional questions will include more openness to discussion of the original drafts of the Amendments and what the members of Congress expressed about them.