2nd Amendment comments

Professor Van Alstyne on
the Second Amendment
By David Hardy

William Van Alstyne, Perkins Professor of Law, Duke University, is author of numerous constitutional treatises and articles; he's generally recognized as one of the top four or five con law scholars in the country, and recently was chosen by one of the emerging former USSR republics to assist in drafting their constitution. In short, a man with first-rate qualifications.

In his article "The Second Amendment and the Personal Right to Arms," 43 Duke L.J. 1236, 1243 (1994), Van Alstyne comes out solidly in favor of an individual rights interpretation of the second amendment. He begins with a note that second amendment court decisions stand about where first amendment decisions stood at the turn of the century, in a arrested, embyonic stage, with courts reluctant to seriously consider the constitutional command. "To trust to this arrested development of the second amendment and of the fourteenth amendment in 1994, in short, is as though one were inclined so to trust the arrested development of the first amendment in 1904. ... In the case of the first amendment, we know quite well that such a jurisprudence only became possible rather late, in the 1920's (but, one may add, better late then never). In the case of the second amendment, in an elementary sense, that jurisprudence is even now not possible until something more in the case law of the second amendment begins finally to fall into place. That 'something more,' I think, requires one to consider what one might be more willing to think about in the following way that*perhaps the NRA is not wrong, after all, in its general second amendment stance* a stance we turn here briefly to review."

Van Alstyne begins with a note that the individual rights view has considerable merit. He outlines this: 1. Reference to the well regulated militia "is in the first as well as in the last instance a reference to the ordinary citizenry." 2. "The very assumption of the clause moreover is that ordinary citizens may themselves possess arms, for it is from these ordinary citizens who as citizens have a right to keep and bear arms (as the second clause provides) that such well regulated militia as a state may provide for, is itself to be drawn." 3. "Indeed, it is more than an assumption, however, precisely because the "right of the people to keep and bear arms" is itself stipulated in the second clause. It is *this* right that is expressly identified as *the* right that is not to be ("shall not be") infringed."

He proceeds then to note that the amendment does not say the militia is necessary to the security of the state but rather necessary to the security of a *free* state. He notes that other national constitutions make reference to the security of the state, but not to a right to arms. "And why do they not do so? Because, in contrast with the premises of constitutional government in this country, they reflect the belief that recognition of any such right in "the people" might pose a threat to the security of "the state."" He explores British legal history, citing Blackstone's (See St. George Tucker for more on Blackstone's) treatment of the right to arms as an "auxillary right"that is, a right supporting the right of self defense, and notes that since American courts have universally held that the government has no enforcable legal duty to protect the citizen, it is hard to square civilian disarmament with any notion of auxillary rights to self defense that is, unless we are willing to accept that the government has no duty to defend us, yet may ensure that we cannot defend ourselves as well, in which event we are simply asserting that there is no right to defend an individual, period. He notes that the second amendment marked a rejection of the "security state," where collective security is all-important and individual security unimportant. The second amendment marked precisely the opposite approach.

"Were the Second Amendment a mere federalism ('State's rights') provision, as it is not, it would assuredly appear in a place appropriate to that purpose (i.e., not in the same list with First through Eighth Amendments, but nearby the Tenth Amendment) and it would doubtless reflect the same federalism style as the Tenth.... Instead, it is cast in terms that track the provisions of the neighboring personal rights guarantees of the Bill of Rights...." ".... Nor is there any basis to try to read the second amendment as though it said anything like the following: 'Congress may forbid the people to keep and bear arms if, notwithstanding that the restrictions it may enact are inconsistent with the right of the people to keep and bear arms, they are not inconsistent with the right of each state to maintain some kind of militia as it may deem necessary to its security as a free state.'

Rather, the second amendment adheres to the guarantee of the right of the people to keep and bear arms as the predicate for the other provision to which it speaks, i.e., the provision respecting the militia .... Specifically, it speaks to an ultimate reliance on the common citizen who has a right to keep and bear arms, rather than to some other politically separated, defined, and detached armed cadre, as essential to a free state. In relating these two propositions within one amendment, moreover, it does not disparage, much less subordinate, 'the right of the people to keep and bear arms.' To the contrary, it embraces that right and indeed erects the very scaffolding of a free state upon *that* guarantee. It derives its definition of a well regulated militia in just this way for a 'free state': the militia to be well-regulated is a militia to be drawn from just such people (i.e., people with a right to keep and bear arms)."

Further Comments on Professor Van Alstyne on
the Second Amendment
By Reber Boult

Some thoughts:

The march of time and technology has been even less kind to the framers' thoughts about the second amendment than the fourth. Often when that happens the provision is reinterpreted to harmonize the present with the past (Thurgood Marshall said that a whole lot better but I've never again been able to find the quotation). Other times, as Van Alstyne indicates has happened with the third amendment, it falls into irrelevancy and disuse. I suggest this is what's happened to the militia basis for the second amendment--it's been quite a while, at least since the Civil War and probably longer, that there has been any conceivable need for civilians to bring their weapons and weapons experience into the military (like Van Alstyne, I'm not pausing to try to figure out exactly what "militia" or Militia" means today). But if there were, a howitzer and experience with it would be more useful than a small arm. If anybody can offer a reasonable reinterpretation, I'm willing to listen, but I can't think of one myself.

That leaves the self defense rationale. Van Alstyne makes, with a big exception, a good case for this and it remains quite viable. The big exception is he doesn't explain, in this context, why they (or Madison) put the miltia clause in there. As I've indicated a couple of times before, I think it means the right is connected in some way to or limited by militias.

We often hear a third rationale advanced--to protect ourselves from the government. Van Alstyne doesn't address this nor, in my opinion should he. First, the amendment says nothing about it. Second, neither the conservative Madison nor the ratifiers could possibly have intended Americans, most of whom couldn't even vote, to be encouraged to shoot at cops and soldiers. As a policy matter, this rationale might not then have been a bad idea (not now, too much difference in firepower between people and the government) but it just isn't Constitutional doctrine. Actually the Cooley quotation, at n.40, suggests a subset of this rationale -- if the government were to be overthrown arms, would give a means to oppose the usurpers. I suppose this also applies to opposing both an overthrow and an invasion. If that applied then I doubt it now, if only for the relative firepower consideration.

That's the meat of my response. The rest is minor observations.

His n.9 goes astray, being sort of inconsistent with his description of the fleshing out rationale for the other amendments. The interplay between Congress' power to arm the militias and the second amendment is not well handled. If the two provisions are given equal weight, then the amendment is, as I believe anyway, entirely militia related. On the other hand, it is, after all, an amendment which one could argue literally changes what went before. The countervailing argument, consistently with Van Alstyne's approach, is that it's not a change, just an amplification or clarification. The amendment's use of "infringed" might have some significance. It's not anywhere else in the first 10 amendments.

Van Alstyne's treatment of the application of the Bill of Rights to the states seems odd to me. He makes a good case that the Privileges and Immunities clause of the 14th amendment does it. The trouble is that the Supreme Court long ago (in 1873 he notes, when it was brand new) neutered that clause and, as far as I know, has never reattached its balls (Van Alstyne sort of vaguely implies to the contrary in n.15 but his citations don't support that). From about the 1930's to about the 1960's, the Court rejected wholesale incorporation of the Bill of Rights as applicable to the states but nevertheless incorporated most of them piecemeal, using the due process clause to do so. As Van Alstyne notes, n.15 again, the second amendment is not among those; he suggests no rationale under which the Court might use to do so under present "incorporation" doctrine.

Van Alstyne's scholarship first came to my attention in law school, 40 years ago. I thought it quite good (can't remember whether I thought it excellent) and referred to it off and on for 10 or 12 years but for some reason haven't since been much in contact with it. I wonder what rationale they give for the right to bear arms in Cuba. Maybe its time to check out a little comparative law, as Van
Alstyne does a bit of.