Is a Reason a Restriction? The New York Times on the Second Amendment
Brian Doherty | January 14, 2008, 11:36am
Prepare for more, much more, of this sort of thing as the Second Amendment promises to be the hot amendment of 2008, as the Supreme Court takes its first deep look at it since the 1930s in the Heller case.
Adam Liptak at the New York Times muses on the complications that come from the Amendment's initial clause that many read as qualifying and thus limiting the purpose of the Amendment:
There is only one other provision of the Constitution that has a similar justifying clause. Congress is given the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
But the justifying, or purpose, clause there does not seem to limit the operative one. All manner of works, useful and not, receive copyright protection, and in 2003 the Supreme Court allowed Congress to extend copyright terms by 20 years even though that after-the-fact extension was not obviously linked to the clause’s purpose.
Many state constitutions have clauses that say why various rights are guaranteed. In an article surveying them in the New York University Law Review in 1998, Eugene Volokh concluded that the fit between purpose and command is often loose, “casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause.”
Plus, check out their thrilling infographic breaking down some of the ways in which legal scholars have debated and interpreted the meaning of every clause of this most difficult little Amendment.
A veritable armory of reason articles on the Second Amendment and guns.
Corey Cagle | January 14, 2008, 2:00pm | #
do the courts ever look to independent writings of the founders regarding their intentions when interpreting the founding documents?
Depends on the judge. Justice Thomas is the most likely to consider the originalist perspective. The Federalist Papers, as well as other writings by Hamilton, are commonly cited by SCOTUS. In this case, as with all Bill of Rights cases, I would hope that some cognizance would be taken of the Anti-Federalist position, as they are the fathers of the Bill of Rights.
In that regard, this is the 17th amendment proposed by the Virginia Convention, which starts from the basis that there is a right to bear arms, and lays out a fairly Swiss model of national defense:
"That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."
In "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents," we find another precursor to the 2nd Amendment:
"That the people have a right to bear arms for the defence of
themselves and their own state, or the United States, or
for the purpose of killing game; and no law shall be passed for disarming the people
or any of them, unless for crimes committed, or real danger of public injury from individuals..."[emphasis added]
Obviously (and sadly), the Anti-Federalists did not get their way in 1787, but it is clear from their writings--which are the reason we have a Bill of Rights in the first place--that they viewed the right to keep and bear arms as a personal, individual right. Again, Justice Thomas will almost certainly support this idea, and probably Justice Scalia as well, but I don't know enough about the jurisprudence of the other members to make a reasonable prediction.
