Guns and Lattes: Lethal Analogies and the Future of the Second Amendment

In New York State Rifle & Pistol Association Inc. v. City of New York, New York, the first gun case to reach the high court in almost a decade, gun rights advocates pushed their conception of the scope of the right in a novel direction.  The city regulation being challenged in the case restricted New York City residents who had obtained a premises license from traveling with their arms in public apart from a few well-defined exceptions. The challenged regulation did allow permit holders to take their weapons to firing ranges in the city but prohibited them from taking guns to a country house or firing range outside of the city.   Much of the oral argument focused on the fact that the original regulation at the heart of the case had already been repealed by the city and preempted by new state regulations that effectively barred the city from re-enacting the regulation. In the technical language of the law the case had been mooted.  One legal commentator even compared the case to the famous Monty Python sketch in which a dead parrot is palmed off as merely resting.  The irate customer eventually declares: “This is an ex-parrot.” Several justices, frustrated with the arguments presented by former solicitor general Paul Clement, stopped short of mimicking Monty Python’s John Cleese, but the underlying point was the same. There is no live issue in this case for the Supreme Court to adjudicate.  Most court watchers feel that because it no longer represents a live controversy, a requirement hard wired into the Supreme Court’s Article III constitutional power to hear cases, it will be mooted.

Rather than concede the mootness point and live to litigate another day, Paul Clement urged the high court step into one of the most controversial issues in American public life.  The heart of Clements’s argument was that his clients might still run afoul of the law if they stopped for a coffee on the way to a firing range outside of the city. Thus, the Second Amendment envisioned by the gun rights lobby and defended by Clement apparently now includes a right to bear lattes, alongside the right to bear arms.  If one reviews the transcript of the oral argument the word “coffee” appears almost as often as the phrase “Second Amendment.”  Clements’s right to bear lattes argument shows that the version of originalism driving today’s Second Amendment debate has become completely un-moored from any historical foundation.

In an interview conducted prior to oral argument Clement tried to analogize New York’s law to a prohibition on using out of state libraries, a restriction that would run afoul of the First Amendment.  There are many problems with this analogy. Guns and words are fundamentally different and have always been treated differently under American law. There is no historical reason to analogize the First and Second Amendment. Nor does this analogy make much sense from the perspective of text, history, and structure. A careful and close reading of the language of the two texts and an analysis of their structure undercuts arguments that the two texts ought to be treated similarly as a matter of law.

The First Amendment talks about the abridgement of rights, and the Second Amendment discusses the infringement of a right. (The gun lobby has even tried to turn the singular right mentioned in the text into a plural cluster of Second Amendment rights, a fact that has not garnered enough attention thus far, but ought to receive some attention in future scholarship.) Abridgement meant diminish and infringement meant destruction. Thus, limits on the scope of the Second Amendment pose no constitutional barrier until they approach a destruction of the right. In short, the different language used in the two texts clearly suggests different scopes to the range of regulatory authority that we the people acting through our duly elected representatives may exercise in this area. Gun rights advocates seem to have forgotten that the most important right in the pantheon of eighteenth-century liberties was the right to representation and its concomitant power to enact laws for the public good.

The Second Amendment also contains a preamble, affirming the necessity of a well regulated militia.   At the time of its drafting preambles were widely understood by those steeped in English modes of legal interpretation to provide the key to unlocking the meaning of the text. It is notable that in District of Columbia v. Heller, the controversial, but landmark, gun rights case that Clement cited for authority, Justice Scalia had to turn to legal treatises written almost a half century after the Second Amendment to get around this fact. In one of the most surreal moments in American constitutional law, Scalia opined that in the case of the Second Amendment one had to read the text backwards, taking up the second clause first and only then turning to the first clause.

As a matter of history, guns and words have never been treated the same. Thus, neither history nor common sense supports Clement’s argument. Nobody has ever died as a result of a drive by printing. Guns were always subject to a range of regulations that would never have been permissible for freedom of speech. The government could force one to bear arms, but it could not force one to speak. Privately owned arms related to obligatory militia service were subject to government inspection. Yet the one thing that virtually all Americans agreed about regarding the scope of First Amendment type freedoms in the Founding era was the prohibition on prior restraint for publication. One might be punished for libel after printing, but government could not stop you from speaking your mind. By contrast, the federal government and many of the states required individuals to swear loyalty oaths or face disarmament. No state restricted the rights of citizens or residents to practice their religion or publish their sentiments to taking a loyalty oath. Guns and words are simply different. This was true in the Founding era and remains true today.

The New York Pistol case will likely be deemed moot, assuming the Supreme Court follows its own precedents on this issue.  Still, based on the oral argument it seems clear that the most ardent gun rights advocates on the Court are eager to expand gun rights further. Much of their case for this effort to “super-size” the Second Amendment, expanding its scope beyond anything remotely rooted in the actual text and historical meaning of the right to bear arms, rests on bad analogies, poor history, and tortured logic. The Supreme Court ought to resist such judicial activism and steer clear of conjuring out of thin air a right to bear lattes.

Book Mini-Symposium Part I: Militias, Bearing Arms, and the Forgotten Language of Eighteenth-Century Rights

Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms.  Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.

This conception is almost the exact opposite of the way most modern gun rights advocates view the matter. In modern gun rights ideology the right to bear arms makes possible a citizen militia, so the militia is an ancillary of the right to keep and bear arms.  Most members of the Founding era saw matters differently: because a well-regulated militia was necessary to the security of a free state,  they insisted, the right of the people to keep and bear arms had to be protected.

A closer look at the two first state declarations of rights is instructive. Virginia, the first state to draft a declaration of rights, did not expressly protect the right to bear arms. Instead, Virginia asserted: “that a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  The militia was set against the danger of a standing army and the need for the military to be subordinate to civilian authority. This was the classic Whig conception of the militia.

In a separate provision Virginia also affirmed: “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The recasting of the Lockean trinity of life, liberty, property in this text suggests that the idea of individual self-defense was not seen as identical to either the right to bear arms or the preservation of a well-regulated militia.  Modern gun rights ideology, including the majority opinion in District of Columbia v. Heller, have blurred these distinct concepts together, effectively rewriting the original conception of Second Amendment in light of post-eighteenth century changes in American thinking about gun rights.

Turning to the second declaration of rights drafted after Independence, the Pennsylvania Declaration of Rights, the idea of the right to bear arms is clearly expressed: “that the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” As was true for Virginia, Pennsylvania linked the militia with the traditional Whig fear about standing armies.

In Heller Justice Scalia adopted the modern gun rights view of this text, arguing that it unambiguously asserts an individual right to bear arms and that this right was synonymous with the individual right of self-defense.  One problem with this claim is that Pennsylvania also separated the Lockean trinity of life, liberty, and property, from the right to bear arms.

Another piece of textual evidence cutting against Scalia’s interpretation is the inclusion of a provision of a right not to bear arms. Protecting a right for conscientious objectors such as Quakers, Moravians, and Mennonites not to be forced to bear arms is hard to reconcile with Heller’s conceptualization of the right to bear arms as modern individual right. The idea of forcing someone to bear arms in individual self-defense is absurd.

Moreover, the history of the constitutional struggle over religious exemptions in Pennsylvania shows that “bearing arms” was not understood to be a synonym for “carry a gun” as Scalia argued in Heller. Pennsylvania allowed those religiously scrupulous about bearing arms to pay a fine instead of serving in the militia. For Quakers, the most militant pacifists in Pennsylvania, this compromise was unacceptable.  Any support for the militia, including  paying for substitutes, paying fines, or even paying for non-military supplies was a violation of Quaker faith.  Thus, a Quaker might bear a gun in many circumstances:  Quakers’ firms manufactured arms and Quakers even worked as gun smiths, but the one thing a Quaker might not do was serve in the militia. So contrary to Scalia, bearing a gun and bearing arms were not synonymous. Indeed, carrying a flag or a drum in a militia unit, either on a muster field  or in battle, would have violated the Quaker peace testimony, and been viewed by the community as an impermissible example of arms bearing. By contrast, using a gun to rid their own fields of critters and pests, an agricultural necessity, would have not posed any problem. Quakers were religious pacifists, not vegetarians, something Scalia’s account confuses.

Although the first declarations of rights drafted after Independence have often been quoted in the modern Second Amendment debate, they have seldom received the careful attention they deserve.  When read in context, these early legal texts do not support the simplistic claims so often made about the “original meaning” of the Second Amendment.  The time has come to free these texts from the ideological distortions wrought by the modern debate over gun rights and gun control and understand them as part of an eighteenth century debate over rights that shares little with our modern conflicts over the proper role of guns in a free society.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]