The study of constitutional law is divided neatly into two categories. The first category concerns the protection of an overlapping set of individual liberties, dealing with property, contract, religion, and speech. The second category addresses the broad array of structural protections whose implementation is thought to indirectly protect those liberties.
One key structural element of the American Constitution involves the design of a two-tier federalist system that distributes government powers between the national government and the states. How should a libertarian, whose natural instincts tend toward lower levels of government activity, think about the way in which federal systems can either strengthen or undermine the constitutional protection of individual liberties?
In dealing with this issue, it has often been asserted that libertarians are all too fond of states' rights. Consider this critical outburst from Andrew Sullivan’s blog:
A real libertarian should be just as concerned about a State government's infringement of individual liberty as the Federal government's. There should be no distinction. Period. Instead, for some strange reason, American libertarians always rail against Federal power and champion the cause of unfettered State power. Why do you think American libertarians historically champion the cause of unfettered State power in the name of "individual liberty"?
Illustration by Barbara Kelley
The “always” is a bit much, for this diatribe contains serious historical inaccuracies that were rightly exposed by Damon Root writing for Reason Magazine. As he notes, libertarians rose as one to condemn the Supreme Court’s decision in Kelo v. City of New London, which eviscerated the “public use” limitation on the state power of eminent domain by allowing a taking.
Indeed, former Supreme Court Justice Sandra Day O’Connor wrote her legacy when she protested, “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Root is surely correct that in any toe-to-toe confrontation between government and individuals, the good libertarian will oppose with equal ardor government power grabs at both the state and the national level. The presumption against government action is equally strong in both cases.
Nonetheless, Root goes astray with his second example of individual liberties, in dealing with the right to keep and bear arms under the Second Amendment. He treats the issue as though it were just a question of individual rights against government. Libertarians thus rejoice in the opinion of Justice Antonin Scalia in District of Columbia v. Heller, which protected the right to keep and bear arms in Washington D.C. In line with his libertarian views on state’s rights, Root (and many others) also strongly defend the United States Supreme Court in its closely divided decision in McDonald v. City of Chicago, which extended the protection of that right to the states through the application of the Fourteenth Amendment.
Federalism trumps individual rights in the Second Amendment.
Root’s analysis, however, misses the key federalism component of the Second Amendment. To see why, it is necessary to plow through a set of gritty and interconnected constitutional provisions. The first of these provisions is the Second Amendment itself, which states in full:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The central interpretive challenge of this amendment is how the first portion of it, up to the words “a free State,” relates to the substantive guarantee that is set out in the rest of the clause. The task is not made any easier by the fact that the fundamental guarantee is stated in the passive voice, so that it is left unclear who may not infringe these rights.
In order to attack these interpretive questions, it is critical to isolate the federalism elements implicit in the amendment. The first of these speaks of a “well regulated Militia,” which on its face looks to be an organized body that is able to run efficiently precisely because it is well regulated. Indeed, today’s National Guards are the state-based successors to the militias of the founding period. The second key point is that the term “free State” does not refer to any abstract notion of freedom, but instead refers to a free State, capitalized—that is, one state in the American union.
Today, it is often assumed that untangling these legal relationships requires Congress and the courts to lay down rules that the states will dutifully follow. But we should look to the Constitution first. It contains other clauses that speak to a deep awareness of the risk of the United States getting drawn into armed conflicts between the states. Thus the Guaranty Clause reads in full:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
In interpreting this provision today, most people focus on the first clause that protects a “Republican Form of Government,” without noting that the remainder of the clause addresses the threat of invasion by setting out procedures to counteract it. The reason this guarantee is offered by the United States is that the courts alone have no capacity to deal with these invasions. The same fear of state invasion is also evident in Article I, Section 10, which contains this neglected provision:
No state shall, without the consent of Congress, . . . engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Militias are under the control of the states, not the federal government.
Those invasions could come from foreign governments or from other states. Together, these two provisions outline complex institutional arrangements to respond to the major risks of the time. Nor do they stand alone. The third piece of this puzzle relates to the operation of state militias, which receive extensive protection in Article I, Sections 15 and 16, dealing with the powers of Congress, and further elaboration in connection with the president’s role as commander-in-chief under Article II. The relevant references clearly link up to the first clause of the Second Amendment. Thus Congress shall have the power . . .
(15) To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
(16) To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
The president’s role is set out in Article II, Section 2:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . .
These provisions all work together. The president may command the militia once it is called into the actual service of the United States. But he does not have the power to call them up, given the evident risk that his unilateral action could strip the states of the powers needed for their self-defense. The Congress, therefore, gets to set those procedures. But even Congress’s authority is limited to the purposes for which the militias can be called up: enforcing the laws of the union, suppressing insurrections, and defending the United States from invasions. Sending troops overseas on other kinds of ventures is not part of its limited mission.
Indeed, this provision provoked a major constitutional crisis upon the entry of the United States into World War I. The Supreme Court, in the Selective Service Cases of 1918, allowed President Wilson to run roughshod over the limitations on sending the militia overseas by drafting them all into the army. Today, all members of the militia (now, the National Guard) are by law also members of the army, under the so-called dual status arrangement. But even today, when the militia is not called up into federal service, it remains under the control of the state, which retains the power to appoint its officers.
Owing to this dual control structure, Article I, Section 16 divides the authority of the militia. The states handle the organizing, arming, and disciplining (e.g. training) of the members of the militia. They also maintain the critical authority of appointing its officers. But since the militias of different states must be able to work together in a national conflict, their instruction and organization follows a standard pattern that allows for coordination.
It is against this backdrop that one has to read the Second Amendment. Justice Scalia’s key interpretive move was to treat the first clause as having no independent force, so that the operative provision of the Second Amendment reads, “the right of the people to keep and bear arms shall not be infringed.” But that right, of course, cannot be absolute because it would allow convicted felons and insane persons, who are part of the people, to keep and bear arms. Thus once the Second Amendment becomes the source of individual rights, it is now necessary to allow for reasonable state regulations of this right to keep and bear arms.
Note that none of this is necessary if the provision is read against its federalism backdrop. The federal government cannot regulate what goes on in the states, but the states are free to regulate weapons without regard to the Second Amendment, which does not apply to them. As a matter of textual interpretation, it is unwise to read out explicit passages of a short text, especially when it is necessary to read other provisions into it.
Washington D.C. is the one place where the amendment has no application whatsoever.
The federalism interpretation of the Second Amendment has profound implications for both Heller, which dealt with gun control laws in Washington D.C. and McDonald, which addressed the same questions for Chicago. Washington D.C. was of course created as the national capital out of parts of Maryland and Virginia. It has a distinctive status because it is subject to a single level of government. On that view, the regulation of arms within the District poses no threat to the way in which the states operate, so that, far from being the right place to bring the initial challenge against gun control laws, it becomes the one place where the amendment has no application whatsoever.
A related set of considerations explains why the Second Amendment imposes no limitations on the states. One of the standing disputes of American constitutional law is the extent to which the adoption of the Fourteenth Amendment “incorporates” some of the protections that the Bill of Rights affords against the federal government and applies them to the states. It’s common knowledge that the version of American federalism in place prior to the Civil War placed too few constraints on the operation of state governments. The Fourteenth Amendment did not give the federal government the power to usurp state functions by passing laws that it could not pass prior to its adoption. But it did supply a major check against state laws that could be enforced both by Congress through “appropriate” regulation and through the courts.
The most notable guarantee for these purposes is one that provides that “no state shall make or enforce any law that abridges the Privileges or Immunities of the Citizens of the United States.” Privileges and immunities, especially when used in conjunction, are terms of art meant to be read capaciously, but which do not include any explicit reference to the right to keep and bear arms as found in the Second Amendment.
Given the lack of clear direction, the incorporation of particular provisions of the Bill of Rights has always taken place on a selective basis. On this view, the Second Amendment looks like a poor candidate to bind the states, given the approach to federalism taken here. The point of the amendment is to deal with the interactions between the federal government and the states in ways that leave the states free and clear of federal oversight on their own internal regulation of the use of firearms.
It would be very strange indeed if the provision that is intended to preserve state independence from federal control should now be read as an individual right that binds the states as well as the federal government. The individual right followed neatly once Heller stripped out the initial clause, leaving only the substantive guarantee. But this position becomes indefensible if Heller was incorrectly decided. A sensible and integrated reading of the entire Constitution leaves the regulation of the right to keep and bear arms to the states.
In dealing with this or any other question of constitutional interpretation, it is wrong for libertarians, or anyone else, to read one portion of the overall clause in isolation, as if the only issues that the Constitution addresses are matters of individual rights. Oddly enough, before the adoption of the Bill of Rights, basic federal-state relations—not individual rights—were the Constitution’s focus. That said, natural rights matter when thinking about the relationship of individuals to their own states. References to the theory of natural rights were found in abundance in the state constitutions of the time: The Massachusetts Constitution of 1780 refers, for example, to “natural rights” in the opening sentence of the Preamble.
But the Constitution, at least as originally conceived, was as much a compact among the states as it was a compact with the people. Apart from the stirring “we the people” in the Preamble, the rest of the document is largely concerned with structural matters that continue to retain great importance. Libertarians should be concerned not only with individual rights, but also with the institutions needed to protect them. Natural rights without sound institutions will falter, just as sound institutions that are not directed to the preservation of libertarian rights will all too easily go astray.
Another excellent and provocative essay by Professor Epstein. If he is correct, we must look to the several states for a guarantee of the right to keep and bear arms. And in most cases, we find it in an express or implied constitutional protection, sometimes in the context of a state militia but sometimes standing alone. Whether or not Professor Epstein is completely right, he has once again shown his gifts as a teacher; because his essay makes me want to learn more about the history, structure, and workings of the magnificent document from which our civic life is, quite literally, constituted.
The current issue of the Journal on Firearms & Public Policy (Vol. 23, 2011) includes my article entitled The American Revolutionary Era Origin of the Second Amendment's Clauses. It examines and documents the origin of the "well regulated militia" clause of the Second Amendment and how its predecessor language was used by the founding generation both before and after its inclusion in the first American state bill of rights in 1776. This article makes clear that both clauses of the Second Amendment were understood as protecting individual rights. The article is available online here.
A major problem with Richard Epstein's approach is that he has removed the Second Amendment from its historical Bill of Rights context. Both clauses of the Second Amendment were developed by Madison and Congress from quotes taken from existing state bill of rights protections. These were specifically adopted by the state ratifying conventions for addition to the U.S. Constitution as part of a complete "bill or declaration of rights." By removing the "well regulated militia" clause from its historical setting (a federal government limiting provision based on prior state government limiting provisions, just like the protections of the other first eight amendments), Prof. Epstein has made it impossible to understand what the language was intended to mean.
The solution for this problem is a much better understanding of bill of rights related American history. It is unfortunate that the Supreme Court did not directly address the militia clause of the Second Amendment in the Heller case since ample historical materials were available to the Court to undertake the task. Most of the materials found in the above noted journal article are also found in my book, The Founders' View of the Right to Bear Arms, which was cited to the Supreme Court numerous times in various Heller case amicus briefs.
—David E. Young
Editor–The Origin of the Second Amendment