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GUNS AND THE CONSTITUTION:Telling The Right Second Amendment Story


Friday, Nov. 02, 2001

A federal appellate panel ruled last week that the Constitution guarantees a limited right of individual Americans to keep guns for nonmilitary purposes. By so ruling in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit re-energized popular debate about the meaning of the Second Amendment and also created a split among federal appellate courts, thus increasing the odds that the Supreme Court will soon weigh in with its own reading of the Amendment.

Citizens who enter the fray – be they Justices or other judges, lawyers or layfolk–should be wary of the Fifth Circuit's opinion. Though the Circuit may have reached the right conclusion, both in recognizing an individual right and in deeming it nonabsolute, the court told the wrong constitutional story.

And make no mistake, the story Americans tell themselves about liberty matters, and the story judges tell us especially matters, for these are the stories that shape our self-image and ultimately determine who has rights, to what, and why.

The Emerson Opinion and the Constitution

As our fellow Writ columnist Michael Dorf has explained more fully, Emerson involved a man who brandished a firearm against his estranged wife in violation of a federal statute. Parting company with other federal courts, which have limited the application of the Second Amendment to organized militias like the National Guard, the Fifth Circuit insisted that the amendment affirms a broader individual right to own guns. The court also ruled that this right must yield to reasonable regulations, including the gun statute at issue.

Professor Dorf and other commentators have thoughtfully discussed whether the Emerson ruling is consistent with current Supreme Court precedent. But as United States Chief Justice John Marshall observed over 150 years ago, "it is a Constitution" — and not the U.S. Reports, which compile judicial opinions — that "we are expounding." And when we turn to the Constitution itself, we see that the Fifth Circuit's account of the document is lacking.

The Fifth Circuit claimed that the Second Amendment's text and history compel an individual rights reading. But they do not.

The Meaning of the Phrase "Bear Arms"

Indeed, the Emerson court found only one clear nonmilitary use of the phrase before 1789. Against this linguistic outlier are scores of military allusions to arms-bearing in eighteenth-century laws and legal sources.

The Second Amendment's overall context further strengthens the military reading of the phrase "bear arms." The Amendment speaks of a "militia"— another military term — and flanks the Third Amendment, which addresses the military issue of troop quartering. Most eighteenth-century state constitutions likewise linked arms-bearing to other military matters.

Evidence for a Collective, Not an Individual, Right

Moreover, in considering whether the Second Amendment creates an individual or a collective right, we should note that the Amendment speaks of a collective "people," not individual "persons."

Elsewhere, the Constitution most often uses "the people" as a collective noun embodying voters and jurors, rather than all citizens. The Preamble, for example, states that "We, the people"–that is, voters–ordained and established the Constitution. Similarly, Article I directs that the House of Representatives shall be elected biannually by "the people"–once again, voters.

And of course, at the Founding the class of voters was very different from the class of citizens. Women, children, and aliens fell outside this core definition of voting "people." They were likewise excluded from the Second Amendment's "militia."

The Second Amendment's syntax, too, suggests that the "militia" and the "people" are, roughly speaking, synonymous; the use of "people" in the Amendment's second clause in effect refers back to the use of "militia" in its introductory clause. (Indeed, an early draft spoke explicitly of the militia "composed of the body of the people." The final draft makes this point with fewer words.)

According to the Amendment's basic vision, all voters ideally should serve in the military, and the military in turn should be composed of ordinary voters. This conception is quite far afield from today's professional military. However, it can be more easily understood by thinking of the early military as somewhat similar to a jury, another local collectivist institution closely akin to the militia. At the founding, one would have not only a jury of one's peers, but ideally a militia of one's peers as well.

The Historical, and the Contemporary, Second Amendment

None of this means that Emerson is wrong in result or that the Constitution cannot now be read to protect a qualified individual right to possess guns outside the military. Other constitutional clauses are read nonliterally and the Second Amendment may likewise be read expansively.

Law and language have evolved; today it is common to speak of nonmilitary arms-bearing. Many modern state constitutions embrace a limited right of individual gun ownership, and millions of Americans deem guns a fundamental right, though not an absolute one. The fact that there are almost as many firearms as citizens in this country similarly suggests that, like it or not, guns are part of the American ethos.

How Later Amendments May Have Altered the Second Amendment's Meaning

Most importantly, we must remember that our Constitution differs dramatically from the Framers'. Over the centuries, We the People have made amends for some of the Founding fathers' failures. And some of these amendments speak to the question of who in America should be trusted with arms.

The great generation that won the Civil War had a more individualistic view of liberty than did the Founders, and this later generation's Fourteenth Amendment, adopted in 1868, reflected that individualistic worldview. Concretely, the Amendment pledged to protect various fundamental "privileges and immunities" of individuals.

One such "privilege" explicitly embraced by the Reconstruction Congress in legislation accompanying the Fourteenth Amendment was a limited right to have a gun in one's home for self-protection, because police in the 1860s could not always be trusted to protect blacks from white night-riders and other thugs. This right to a gun was seen as a right of all citizens–women as well as men, blacks as well as whites–even if the gun owner was not a voter or militiaman.

The Fourteenth Amendment, which Emerson virtually ignored, both anchors an individual right in constitutional text and explains why this right is properly limited by other rights, like the right to be free from irresponsible gun use and thuggery.

Instead of detailing the Fourteenth Amendment's new birth of freedom — and the way it might alter our understanding of the Second Amendment — Emerson blandly cited parts of the Supreme Court's infamous 1857 Dred Scott case, without even noting that much of that case was repudiated by the Fourteenth Amendment. (Dred Scott held that blacks, even if free, could never be citizens, and were entitled to little respect from whites. The Fourteenth Amendment explicitly overruled this holding by promising citizenship to all born in America–rich and poor, black and white, male and female--and by further promising to protect all citizens in their fundamental "privileges and immunities.")

Nor did America's constitutional saga end with the Fourteenth Amendment. In 1870, the Fifteenth Amendment enfranchised black men because they had helped win the Civil War on the battlefield–preserving the Founding linkage between military arms-bearing and voting, but extending the definition of "the people" to include former slaves and other free blacks.

Rallying Around the Amended Constitution — Not Just the 1789 Text

Emerson erred by failing to weave any of these amendments into its arms-bearing story. By inflating the Founding, Emerson exaggerated a 1789 text adopted with little input from women and blacks. It also slighted later amendments expanding democracy, amendments that affirmed rights of previously excluded persons and included these persons in the constitutional conversation itself.

In general Emerson's methodological skew — that is, its exclusive focus on the founding — tends to tilt constitutional adjudication sharply rightward. Consider, for example, civil rights more generally. Unlike Emerson, the Warren Court understood the importance of Reconstruction and upheld every federal civil rights law it reviewed. In contrast, the Rehnquist Court, a la Emerson, has trivialized Reconstruction. In the name of Founding-era states' rights, the Justices have invalidated key Reconstruction-style civil rights laws protecting women, the elderly, the religious, and the disabled. The judiciary has also endorsed sex discrimination in the military and age discrimination in jury selection–types of discrimination much easier to justify if we look only to the Founders while ignoring the equality vision underlying the Fourteenth, Nineteenth, and Twenty-sixth Amendments.

With Americans under attack, our Constitution can be a rallying point uniting citizens of diverse ethnicities, faiths, and ideologies. But the document contains much more than the Founding vision. It also reflects the spirit of antislavery idealists, progressive era reformers, and 1960's activists.

When other courts and commentators revisit the gun issue, they should tell the full story, rather than merely the opening chapter, of American liberty.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review review articles and four books.

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