[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.]
In District of Columbia v. Heller, the Supreme Court relied heavily on (hotly contested) historical evidence about the original meaning of the Second Amendment. In NYSRPA v. Bruen, the Court doubled down on this approach, rejecting the various two-step intermediate scrutiny approaches adopted by all circuit courts since Heller. One main takeaway from Bruen is that future Second Amendment cases will turn mostly on historical arguments and evidence, though modern means-and-ends analysis will still be a necessary part of the analogical reasoning the Court contemplates.
The Court’s originalist methodology seems to have evolved in the years since Heller, making it especially important to revisit a specific part of Second Amendment history – the original draft that the House debated and voted to adopt. This version included a clause, omitted from the later Senate version, stating: “ . . . but no person religiously scrupulous, shall be compelled to bear arms.” The House debated this clause extensively, and the version of the Amendment it adopted included it. Then, for reasons lost to history, the clause dropped out when the Amendment moved through the Senate (the Senate lightly edited several of the Amendments in the proposed Bill of Rights, making them more concise).
Justice Scalia spent a section of the Heller opinion (at pp. 589-90) responding to an argument from Justice Stevens’ dissenting opinion about this “conscientious objector” clause, though both opinions in Heller quoted a later version that included some edits proposed in the House debates: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Both the majority and the Stevens dissent in Heller called this the “conscientious objector clause,” though this phrase was not in use at the time.
After Bruen, the conscientious objector clause in the original Second Amendment deserves another look, and it could have relevance to firearms policy today. Both Justice Scalia and Justice Stevens were partly mistaken in their comments in Heller – both about the Quakers and the clause in the original draft of the Amendment. Justice Stevens overstated the case when he said the exemption proved the entire Amendment was about state militias versus federal standing armies, because the citizen-soldiers who comprised the militias were normally expected to bring the guns they owned when they reported for duty. Having militias meant having guns, but also implied something about private property rights in guns: privately-held guns were, to some extent, held in a type of quasi-public trust. Justice Stevens was right, however, that the clause itself, and the Congressional debates about the clause, reveal that the public at the time did not have a clear notion of individual civilian gun ownership that was completely and always distinct from armed military service.
Justice Scalia, on his part, was mostly right in Heller in his assertion that devout Quakers were not merely noncombatants, but would not have used any weapons in personal self-defense. (He was technically incorrect about it being “prohibited” – it was more of a widely-shared group norm than an enforceable rule). Scalia was also correct that Quakers had a reputation on the frontier for traveling about unarmed – in fact, they had a reputation for being left un-attacked as well, because the indigenous tribes learned early on that Quakers were friendly and always unarmed, and they assumed that anyone traveling in the wilderness unarmed must be a harmless Quaker.
Nevertheless, Scalia’s argument skipped a step. He argued that the Quaker scruples against arming themselves for self-defense showed that the Second Amendment was not merely about the existence of state militias, but was also meant to protect individual gun ownership for self-defense. Assuming that is the case – and Bruen doubles down on self-defense as the “core” meaning of the Second Amendment – then what exactly was the Quaker clause supposed to protect? If the Framers originally intended to provide legal protection (a Constitutional right) for the refusal to arm oneself for self-defense, what does that mean today for those who refuse to participate in the American gun tradition, such as the public carrying of weapons at issue in Bruen?
I anticipate that some will object that this question is moot, as the Quaker clause dropped out of the final version. Suppose, hypothetically, that the original version of the Second Amendment had been sent to the states for ratification (with the “religiously scrupulous” the clause intact) – what would that imply today in terms of legal rights for nonowners, for those who have conscientiously disarmed? I believe the Second Amendment would have been ratified even if the “religiously scrupulous” clause had remained (most of the original states had some history of statutory exemptions from militia service for religious pacifists, usually with a fine-in-lieu-of-service). This was a well-documented part of the history of the right to keep and bear arms, the other side of the coin from the positive right codified in the Second Amendment.
In terms of relevance for modern gun policy, I have argued, as have Ian Ayres and Fred Vars, for states and/or the federal government to facilitate self-bans, a way for citizens to give up their right to own guns (either for personal safety or for conscientious reasons) and add themselves to the NICS background check databases so that they are unable to buy a gun, at least from sellers who conduct a background check. Ayres and Vars also propose allowing (via multiparty contracts) gun-free business districts, and it is easy to imagine something similar for distinct residential communities, such as a homeowner’s association or a condominium association. Joseph Blocher made similar arguments in his article The Right Not to Keep or Bear Arms.
Apart from the clause itself, the decision in Bruen warrants another look at the original Congressional debates about the Second Amendment, which centered around the conscientious objector clause, and specifically the issue of Quakers in the new Republic. Quakers came up in the First Congress other times as well – when Congress debated the permanent location for the nation’s capital (concerns were expressed about locating it in a place dominated by Quakers), when they debated a militia bill, and when the sect petitioned Congress for the abolition of slavery, prompting explosive tirades by Representatives from southern states. William Laughton Smith famously exclaimed, regarding the new republic, “We took each other with our mutual bad habits and respective evils, for better, for worse; the Northern states adopted us with our slaves; and we adopted them with their Quakers.” Quakers even staged a sit-in at the building where Congress met, occupying the second-floor gallery overlooking the Congress as they debated the petition to abolish slavery; they turned out in full force in both New York and Philadelphia (wherever Congress was meeting) to lobby individual members of Congress about exempting them from serving in or supporting any military activities in any way, and about abolishing slavery. They accosted representatives on the street, visited them in their offices, and so on.
Each time Congress discussed the Quakers, similar points were made by the same members. When these other debates from the First Congress are read together with the debate about Quakers and the Second Amendment, it appears that the “right to bear arms” was intertwined with the slavery issue, Indian relations and westward expansion in the territories, taxation and the federal assumption of state war debts, and the supply and retail distribution of guns. At the time, the Quakers were a large, close-knit, wealthy, and socially influential group, at least on certain issues, and the strong positions the Quakers took on each of these issues (militias, guns, slavery, Indians, taxes, westward migration, etc.) connected them together even more.
The point of all this is that when the First Congress debated about the Second Amendment, they debated about the Quakers. They largely did not mention crime rates or criminals, types of guns in common use, rights to carry in public, the Castle Doctrine, or the prevalence of dueling at the time – any of the topics we might expect to come up when elected officials today discuss gun rights. If we are going to be faithful to the history of the right to keep and bear arms, part of that history was the Quaker angle to the question – which implicated the role of guns in maintaining the institution of slavery, establishing more settlements on Indian lands, taxation for military-related spending, loyalty oaths to the government, and so forth.