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 Supreme Court's decision in New York State Rifle Assoc. v. Bruen, has reopened old wounds and calcified opinions regarding the Second Amendment's right to keep and bear arms. The entrenchment can be summarized by saying that gun rights advocates point to the word people insisting that the amendment guarantees a personal right; to which the gun control advocates reply by pointing to the word militia, insisting that the right to bear arms is only guaranteed within the context of serving in the militia.
The amendment unmistakably conjoins two distinct concepts and the argument is not satisfactorily resolved by wrangling over grammar or the text of the amendment in the abstract. As a result, the protagonists seek to interpret the amendment within the context of legal precedents and end up arguing over those texts as well. There are two fronts in this regard: (1) legal precedents after ratification of the Bill of Rights in 1791, showing how the amendment has been understood, and (2) legal precedents prior to 1791, casting light on how the Framers understood and thought about the question of Men and Arms in society.
It is in this way, judges and legal commentators in the 21st century have ended up wrangling over an English law enacted in 1328 known the Statute of Northampton. Needless to say, the battle lines were predictable. The statute, which was still in effect in the 18th century on both sides of the Atlantic, prohibited “riding about with arms to the terror of the people.” Right advocates argue that the statute presupposed a right carry arms and only prohibited their misuse. Control advocates argue that the statue was a blanket prohibition against carrying arms in public or at least “dangerous and unusual ones,” this latter phrase being used in 18th century commentaries on the statute.
As I explain, the gun-rights advocates win the day. The Norman-French, in which the statute was originally written, uses the word chivaucher which means to ride about raiding and pillaging - which is what the phrase “to the terror of the people” was meant to convey.
As I further explain, English and American statutes following the Statute of Northampton did impose “time and place” limits on the use of arms but there was no general prohibition on private ownership or carrying. On the contrary, since Saxon times there was an expectation that free men would have and be versed in the use of arms; and various statutes, such as the Assize of Arms (1181), the Statute of Winchester (1285) and later Tudor legislation, required freemen to have and practice the use of arms by which was meant weapons of war.
Such laws were obviously framed with military and policing purposes in mind; however, gun control advocates make the anachronistic mistake of projecting. the structure and practice of today's military reserve on to English and Colonial militias of old. Men did not get issued arms only upon joining the militia, rather the “militia” was called up and assembled from men who were already indivi-dually armed. Often times, the militia “self-assembled” and just as often “self-disbanded.” Obviously, over the course of 900 years there were variations in both technology and practice. For example, it is clear that by the late 17th century, if not before, local authorities kept stores of powder, ammunition, weapons, and engines of war. Nevertheless, the operative concept was of a society comprised of men who were both armed for their self-defence, responsible for public safety and obliged to come to the defence of the realm.
That much said, the debate over statues requires us to ask a preliminary question; namely, what are we about when we “look to the law” for an answer? What is the purpose of looking backward before moving forward? Does past experience have anything to say to us given the radical technical and social changes of the past 200 years?
One answer is that we should do what we have always done and therefore all we need to do is look to the those relevant texts which tell what was allowed and what was not. The other answer is that none of this is relevant to the present day and we need be guided only be our own best assesssment of what is just and expedient. This latter view was adopted by Justice Bryer in his dissent, in New York Rifle, in which he stated:
“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”Although framed in terms of deference to State prerogative (aka “states rights”), there can be little doubt that Breyer's view is that states ought to be allowed to do what he thinks is necessary. In my view, Justice Breyer's opinion is untenable; it is destructive of the very concept of law. What he was saying, in effect, is that the law will mean what he wants it to mean. In that case, why bother with written law at all? “Just ask Bryer.”
Bryer's dictum ought to give us serious pause. In 1934, an influential German legal scholar postulated,
“We do not determine what National Socialism is according to a pre-existing concept of the constitutional state, but rather the reverse; the constitutional state is determined according to National Socialism. ... Every interpretation must be an interpretation according to National Socialism.” (Carl Schmidt, “Nationalsocialismus under Rechstaat,” Juristiche Wochenschaft 63 (1934), pp. 713, 716; cited in Ingo Müller, Hitler's Justice, Harvard University Press, (1991), p. 71.)Of course, to be very clear, Justice Bryer was not a Nazi. But what is at issue here is the peril of a particular legal methodology. Objectively viewed, National Socialism was simply a set of adopted social, economic, and political policies; and, so condsidered, Schmidt's formulation could be restated as: “We do not determine our [social policies] in accordance with a pre-existing concept of the constituion, but rather the reverse; the meaning of the constitution is determined according to [our chosen policy].”
In American legal parlance making a text mean what you want it to say is known as “outcome determination” and what it basically means is that the law does not act as a constraint or guide but simply serves as store of verbiage with which to gussy up desire.
The balance between law and expediency was the fulcrum of the debate between Justice Bryer and Justice Scalia who repeatedly criticised his colleague for reading his own preferences into the law, and thereby doing violence to words or at least to plain and straightforward thinking. The danger of a method which is, at bottom, one of desire is that expediencies can veer off in any direction precisely because they do not admit of textual constraint. One may agree with the outcome, in this case gun-control, but what of the day when someone else desires to read another outcome into the law?
Scalia has been unfairly caricatured as espousing a theory of “original intent” pursuant to which the name of the game is to figure out what the drafters of a law or a constitution were intending. Such a motivation-oriented approach was clearly rejected by Scalia. “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”
Thus, whereas Bryer's approach is sociologically driven by present day utilitarian considerations, Scalia's was guided by a sociological understanding of how words were used in the past and what their reference points were.
In my view, Scalia's approach is the better of the two, but it is still incomplete. Statutes and constitutional provisions must also be historically contextualized by which I mean that they must be understood in terms of how they reflect a nation's experience. This is what Justice Holmes meant when he said that the life of the Common Law was not logic but experience.
Legal texts of course tell us what the official practice was with respect to any given subject matter. But legal texts also are sociological evidence of a peoples' custom and usage in dealing with particular problems as they arose. It is by balancing textual meaning with historical events and the development of custom and usage that we are able to allow the experience of our forebearers to speak to us and offer us guidance, if not always mandates, as to how we should best proceed apace. It is with this in mind, that I have undertaken this brief and inadquate review of English law and history prior to the adoption of the U.S. Constitution.
In the Western tradition, an individual's ability to bear arms has always been deemed essential to his survival, protection and independence. This was so universally accepted that early English law felt no need to belabour the obvious. Instead the law, from time to time, imposed prohibitions against the misuse of arms. At the same time medieval English law imposed duties on the citizenry to be armed with designated weapons of war, to train themselves in their use, and to be on call for both local policing and national defence. In 1688, when England became a liberal constitutional monarchy, the expectation and obligation to keep and bear arms was reformulated as an individual right. At the same time, that right was now explicitly associated with the ability of the people in their primordial sovereignty to guard against subversion and resist tyranny.
In drafting the Constitution and the Bill of Rights, the Framers were drawing upon a thousand years of English statutes and experiences. From and after the Norman Conquest in 1066 the near consistent theme of English history is one of baronial (and at times peasant) resistance to government over-reach. This is what Magna Carta, due process, and constitutional monarchy were all about. In search of a rooted justification for their revolt, the Colonists went back into the recesses of medieval history. Above all they returned to Lord Coke's brash finger wagging at James I that the monarch was subject to none “but God and the Law” -- the verbal salvo that initiated the English Civil War and ended with the Glorious Revolution. The Colonists were completely correct in regarding their revolution as being in the best of English tradition.
Contrary to prevalent myth, the U.S. Constitution was not a product of the Enlightenment. It may have been buttressed by 18th century political philosophy -- by the ideas of Locke and Montesquieu -- but the structure itself was steeped in medievalisms. And just as a cathedral is not comprehended by looking at this arch or that column but by intuiting the vaulted space enclosed, so too the Bill of Rights is not a collection of legal provisions that can be understood in and of themselves as isolated objects. What matters is the space that together they shape and enclose.
The dry ink on the Bill of Rights is animated with the sound and clamour of history, of real people “great and small,” doing things small and great, in conflict and in cooperation. If there is a singular theme that coalesces out of this experience it is the idea that the best check on government over-rule was routine, popular participation in the ordinary affairs of government
The rights of speech and assembly, the right to bear arms and the right to trial by a jury of ordinary citizens are a triad of rights that were meant to insure popular control over the affairs of government. It is true, that the right to bear arms is “related” to the participation in the militia; it is also the handmaiden of the obligation to render jury service.
So when it is asked what good is served by “looking to the past,” my answer is: a lot. I am not hearkening to the “spirit of the law” in some vague and romantic sense, like Justice Bryer decked out in flower-garments. The Framers were pragmatic men, dealing with practical problems and trying to bring order out of looming chaos. In doing so, they had the experience of Athens and Rome before their eyes, and this made them distrustful of direct democracy. But they also had their experience as Englishmen at their backs and this made them appreciate the importance of individual rights and popular input. The Constitution was their attempt to strike a social and political balance between the one and the many, between liberty and order, between chaos and oppression. The Constitution is not just a mechanism but represents, in broad strokes a social vision. I do not say it is Holy Writ; I say only that it is worth letting it speak to us.
In reading their wants into the Bill of Rights both sides of the present debate mistake the tree for the forest. The Second Amendment is not a guarantee of mere personal rights. Nor is it a guarantee of an optional right to join the militia. It is both an individual right and its corresponding obligation. What the amendment points to is not just a right to bear arms, and not just a prerogative to of the state to maintain militia's but an expectation that ordinary citizens will be actively involved in maintaining order and in the defence of country. It presupposes a citizen's army and a citizen's police force; and it reflected a deep rooted fear of their opposites: a standing professional police force and army. Rather than seeking to suppress weapons, familiarization and training in their use ought to be extended coupled with programs to incorporate the citizenry into policing their own communities.
It is a mistake to say that Founders could not have anticipated fully or semi automatic assault rfiles, or that they never envisioned New York subways. These are superficialities. As shall be seen they understood perfectly well the problem of weapons of war in crowded spaces. It is equally misfocused to think that the Framer's only wanted to enshrine an individual right. They enshrined an individual right within a social context in which the individual was socially responsible.
It is argued that constitutional experience is all very well and good but that expecting ordinary citizens to police their own communities in vast post-industrial mega cities is a unrealistic. Similarly the idea of a citizen army is outdated in a military environment that requires a year or more of training just to achieve basic proficiency. These tasks, it is said, are best left to professionals.
The same argument has been made, by Justice Bryer in fact, regarding the jury. Best not to tax it with too much; better to leave technical evidentiary and sentencing issues to the “discretion” of professional judges. Better to carefully tailor its independence with “instructions” aimed at “insuring” a “just” result. To this Justice Scalia replied that a "just" result is the one the Framers envisioned: a verdict reached by ordinary men who were not agents of the state.
The Bill of Rights was also a Bill of Expectations that the country would be able to fill that space enclosed by the Constitution with active participation in the triad of politics, justice and defence. What is unconstitutional is our alienated, fragmented, increasingly lumpen society almost devoid of civic capacity.
The Framers would have been horrified at our standing army and militarized police forces. The latter in particular would have been deemed an insult to honour and a degradation of freedom. What the text, spirit and experience of the Second Amendment call for is a root revamping of how the “security of a free state” is provided for.
Given the imperialist monstrosity the United States has become, it is hard to see how any of our fundamental rights can be maintained in the vivid colours originally imagined. But we might at least rethink where we have come to and try.
©2022, Barfo
