December 16, 2007

IN TODAY'S NEW YORK TIMES, Adam Freedman looks at the role of commas in the Second Amendment. He's right that people shouldn't make too much of this -- in fact, if I recall correctly the punctuation wasn't the same in front of all the ratifying states -- but this part, while not exactly wrong, stops short of the conclusion:

Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.

It's short of the conclusion because he misses a key point: the Framers considered an armed populace important, but didn't trust the government -- at either the state or federal levels -- to arm the people. Since the armed populace (the "militia" was said to consist of "the body of the people") was essential as a check on government power, the government couldn't be allowed to disarm it by neglect. Thus, the Second Amendment may be "about protecting militias," but it does so by keeping the populace armed. In fact, Brannon Denning and I expanded on this point at more length in this article from the William and Mary Bill of Rights Law Journal a few years ago. Click "read more" for an excerpt.

UPDATE: Comments from Eugene Volokh. (Bumped).

Excerpt follows:

If one accepts the Communitarian platform's community-oriented approach,[121] it can be argued plausibly that the Second Amendment actually requires the maintenance of a universal militia. After all, the opening clause of the Second Amendment begins, "A well regulated Militia, being necessary to the security of a free State ...."[122] Thus the Framers considered a well-regulated militia to be, well, necessary to the security of a free (p.203)state. [123] Add to this straightforward textual language what we know about the historical background, particularly the Framers' Whiggish hostility toward standing armies,[124] and the idea that the federal government, and perhaps the states as well, possess an absolute obligation to maintain a universal militia seems reasonably well-founded. This intent is evident in light of the 1792 Militia Act,[125] which is entirely consistent with this understanding. Of course, such a duty could be meaningless in practice. Similar obligations of the federal government, after all, have largely been interpreted out of existence. The Guaranty Clause of Article IV, Section 4,[126] for example, was the subject of judicial near-abnegation,[127] with its goal being achieved, if at all, by such other provisions as the Due Process Clause and the Equal Protection Clause. In general, courts are far more willing to entertain claims based on individual rights than on government obligation.[128]

In this light, the Second Amendment could be understood as an example of very careful drafting indeed: a government obligation (to maintain a militia) coupled with an individual right (to keep and bear arms) that ensures that the key element of a universal militia (an armed citizenry) cannot be extinguished by government neglect.[129] At the very least, the clear constitutional statement regarding the necessity of a well-regulated (universal) militia for the security of a free state should give us pause. The logical consequence of this statement is that a state lacking such a militia is either insecure or unfree.[130] In light of what is known about the purposes of the (p.204)Second Amendment and the Framers' views regarding standing armies and armed citizens, an interpretation of the first clause of the Second Amendment as requiring universal militias seems well-founded. It is certainly better grounded in the Constitution's text, history, and purposes than many other constitutional arguments that have attained general acceptance.[131]

I hate to say "read the whole thing" about one of my own pieces, but it's important to understand that to the Framers the "militia" wasn't some specialist unit of government employees, but a group consisting of the armed populace; one that, though in some ways organized by the government, was also in some ways set against the government, as a check. As Akhil Amar says, think jurors, but with guns. Thus, any reading of the Second Amendment that would allow the government to extinguish that militia is impermissible, since it would lead to a state that is insecure, or unfree.