A PHILOSOPHER READS THE SECOND AMENDMENT Part II Guest Post by Merrill Ring

 

A PHILOSOPHER READS THE SECOND AMENDMENT

 Merrill Ring 

Part II The Second Amendment and the Human Appendix 

So, what does the Second Amendment, the first clause of it, have to say about militias?  Worries about whether its talk of militias is relevant to the understanding of the whole has led to a failure to consider carefully what is actually said about militias there.  The amendment says that a militia “being necessary to the security of a free state”. 

 

There is a simple question to be asked:  is that true?  Is a militia, well-regulated or not, necessary to keeping a free country free?  The answer is obviously No – and pointing to the current United States proves that.  We maintain our freedom from external foes without having militias.  (Note:  the National Guard is not a militia – it is a government agency and the militias thought of in revolutionary times were not. And while the current terrorist organization which call themselves “militias” are composed of citizens and not part of the government, they act in opposition to the government rather than in support of it as the militia named in the Second do).

 

Since we today are a free state without such a force as cited in the Second, how do we account for that false statement occurring in the Constitution?  While Madison generalized too far, he was in fact (of course) thinking not of free states generally but of this particular one, the United States as it was in the1780’s.  Why, though, would he have said that militias are necessary to the security of his country? 

The crucial answer to that resides in the Constitution that governed the new country prior to the Bill of Rights, specifically Article I, section 8, clause 12 (the Army Clause).  “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;….”  It is that provision that lies behind the idea that a militia is necessary for our defense. 

The Constitution did not allow for standing armies, regular armies.  The experience the framers had of the British regular army led them to reject such an army for their new country.   So, in the Army Clause they limited the creation of such an army.  That limitation must be contrasted with what is said about a navy in the very next clause (Clause 13): “To provide and maintain a Navy;”.  Congress is called upon to establish a Navy and to keep it in operation (“maintain”).  Armies would come and go – the Navy will persist.

And yet, what about a need for a fighting force between emergencies, given that it will take time for Congress to order the raising of an army and for there to be a successful creation of that army when an emergency arises?  It is just here that the Second Amendment, with its announced need for a militia, was called for.  Citizen militias were to be what functioned to perform military service in the absence of a regular army: they were necessary for the security of the country should the Navy not succeed in preventing enemy forces from landing.

The Second Amendment was not written and ratified to establish individual rights:  it was put in place to operate as a necessary means to defend the United States in the circumstances created by the Constitution.  That is what the text of the Second says.     A historian concurs: “The Constitution's drafters hoped that the militia would remain the nation's primary means of defense against foreign aggression. Considering the development of military tactics and technology of the time, the state militias were able to adequately fill this role. Moreover, the Constitution specifically gave Congress the power to call forth the militia to repel foreign invaders. Many of the Constitution's drafters hoped that the militia clauses would thus preclude the need for a federal standing army, which they viewed as the enemy of a democratic government.” (C. Dougherty, ‘The Minutemen, the National Guard and the Private Militia Movement: Will the Real Militia Please Stand Up?’, 28 John Marshall Law Review 959, 962-970, Summer 1995).

Over the course of American history, however, a standing army was created and grew and, concomitantly, citizen militias shrank until they faded away.  There may  have been no precise moment when a sufficient regular army came to be and so when the militia envisioned in the Second Amendment became unnecessary for the country’s security and faded from existence. 

What we have to notice here is that when that moment occurred, what was the effect on the Second?  Answer: The amendment logically went into the constitutional dead letter file.  And with that, the Second Amendment’s right of citizens to keep (and bear) arms became, without force, empty.

For philosophers, there is an analogous topic.  It was begun by Bertrand Russell who (about 1900 when France was a Republic) raised the issue of whether the present King of France is bald or not.  He created some of his major philosophical machinery trying to answer that, coming down on the side of holding that it is false that the present King of France is bald.  Half a century later (Sir) Peter Strawson pointed out that both “The current King of France is bald’” and ‘The current King of France is not bald’ presuppose that France has a king.  But that presupposition is not true.  Hence, today (France not being a monarchy) neither the statement ‘The King of France is bald’ nor “The King of France is not bald” has a truth value – they are neither true nor false, as there is no King to have or not have hair.  They have, under the condition of a false presupposition, lost a claim to truth or falsity and are thus not subject to sensible discourse.

There is in American law one of those previously discussed maxims of law which provides a norm about what judgment should be made if a legal situation analogous to the philosophical case arises.  The very first maxim of jurisprudence in the California Civil Code (and I understand that the maxim can be found in other Codes) is: “3510.  When the reason of a rule ceases, so should the rule itself.”

In the Second Amendment, the “reason of a rule” is, as argued earlier, the first clause, “the rule itself” is the second clause.  When the country no longer needed militias to provide security, the maxim informs the fair and impartial jurist that the rule granting citizens a certain right pertaining to gun ownership also ceases.

It is very important here to be clear what that argument shows.  It does not follow from anything held here about the Second Amendment that the cessation of civilian militias in the military needs of the country entails that citizens have no right to gun ownership. The only conclusion is that the Second Amendment has ceased providing such a right:  there are now no Second Amendment rights.  Of course, the right to keep arms may well have Constitutional backing elsewhere in the document (to be discussed shortly).

In sum, to adapt a well-known saying, the Second Amendment is dead, dead, dead.  Well, probably that is not the best way to put it.  A good analogy is to the human appendix.  It is an organ that once had a function in the human body but over the course of time has ceased having a role though it remains part of the body – and sometimes, though now useless, it becomes inflamed causing pain and suffering.  So too the Second:  though now without a purpose, it remains in the body politic and is the source of political inflammation, pain and suffering.  (Someone given to horror movies might say that a better analogy would be to compare the Second today to the living dead.)

The equivalent of an appendectomy would be a constitutional amendment to repeal the Second.  Such an attempt does not look at all plausible in any modest period of time.  Of course, the Supreme Court might come in a variety of ways to defend gun ownership not on the grounds of the Second but of the Ninth:  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

There has been thought given to that in the constitutional literature.  I understand that the subject of the Ninth is a vexed topic for the legal establishment:  It does seem to the American on the Clapham bus that, as Bishop Berkeley once said, they have kicked up a cloud of dust and then complain that they cannot see.  It seems clear that the Ninth covers such things as a right to marry (the right to marry the person of your choice assumes a right to marry), a right to raise your children (“parental rights”).  A  right to private ownership of guns for individual purposes (as different from the right for community purposes  given in the Second) seems to fit into that category as private gun ownership has an unbroken history going back to the Mayflower and far beyond as the main body of Scalia’s opinion shows.  (The majority of Scalia’s opinion would function wonderfully to defend individual gun rights under the Ninth.)

The American gun culture would not like that switch to the Ninth.  For one thing, there would be no “shall not be infringed” rider, the phrase that has produced open carry and assault rifles and school shootings.  But using the Ninth would also make gun ownership for individual purposes, an inferred right:  with the Second that culture has a symbolic victory – gun ownership is explicitly in the Constitution, even as far up as the Second Amendment to it, showing that guns are central to American life.  The truth is, however, that the Second is an expression of a need of the country back in its infancy and has been for some time constitutionally dead.

 

 

A PHILOSOPHER READS THE SECOND AMENDMENT, Part I. Guest Post by Merrill Ring

 

 

A Philosopher Reads the Second Amendment

Merrill Ring

Part I Reply to Scalia

The Second Amendment consists of two clauses.  Interpretations of the amendment hinge upon how the relationship between those clauses is regarded. 

One type of interpretation, of which Justice Scalia’s majority opinion in District of Columbia v Heller is the paradigm, treats the first clause – “A well-regulated Militia, being necessary to the security of a Free State,” – as not much more important than the clearing of a speaker’s throat before getting down to business. The second kind of interpretation, exemplified in the dissenting opinions in Heller, regards that first clause as crucial to understanding the entire amendment. 

Here, I shall develop a version of the second kind of interpretation, though with features not usually found in this type of reading of the amendment. The outcome is a radically different view of the status of the Second today.

When I started this project, I did not intend to criticize Scalia’s opinion, other than on a few relatively minor points.  However, as I proceeded it became clear to me that Scalia’s objections to the importance of the first clause have to be critically pursued. 

The point of Scalia’s rejecting the significance of the first clause is to make sure that the notion of a militia does not have a role to play in understanding the second clause. To that end, Scalia produces two arguments against the first clause.  Each of the two makes use of material introduced before the arguments themselves are developed.

First, he establishes terminology which will turn out to be the foundation of his chief argument.  He labels the first clause “prefatory”, a “preface”.  Using that terminology, the clause functions like warming up in the bullpen before the actual game begins and the pitcher has to take the mound.

He provides no argument for treating the clause as a preface – it is simply announced.  Moreover, he does not consider alternatives: it is as if the only rational view is that the clause is a preface.  It is not, however, necessary that the clause be regarded as a preface, something said before the main business occurs.  There is an alternative: it can (and should) be thought of an explanatory clause or the reason for the second clause.  Going that route, however, treats the clause is a matter of substance, not like the salutation “My Fellow Americans” which a President uses to preface the business of the day. Scalia’s preferred term is not required, there is an alternative and it must be noted that he presents no justification at all for using it in preference to the alternative.  In short, it is sheer determination on his part to talk of a preface. That undefended decision will have major consequences for his main argument against taking the first clause seriously.

I have heard a version of Scalia’s move, using slightly different terminology.  It draws upon the terminology of linguistics:  the second clause is an “independent clause” and the first a “dependent clause”.  However, what those grammatical terms mean is that the second could be (elsewhere) an independent, stand-alone, statement, while the first clause could not be a complete statement on its own (that is, it cannot sensibly be said tout court “A well-regulated Militia, being necessary to the security of a Free State”). 

At this point in the text, something erupts into it.  Scalia loses his bearings and sets out some of the case against him.  That is, he (powerfully) develops a consideration that shows that the first clause is not irrelevant to understanding the Second.  I have no explanation of how it came about that Scalia inserted this material.  I shall stick to noticing that he did so and its consequences.

The relevant passage: “Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.’ That requirement of logical connection….”

The case Scalia uses to exhibit his point needs to be simplified. Consider instead a statement grammatically analogous to the Second: “Being tired, he went to bed”.  That is totally unproblematic.  On the other hand, as Scalia points out, it is “nonsensical” to say “Being tired, 7+5=12”.  Moreover, though Scalia does not notice that the logical discrepancy can occur in the opposite direction also,  it is also nonsensical (at least in need of serious explanation) to say “7+5 being equal to 12, he went to bed”.   We can say that, in agreement with Scalia, there is an internal or logical connection between tiredness and going to bed and as a consequence the original remark makes sense – whereas the other two do not

Let me restate Scalia’s point without analogy.  Following a clause beginning “A well regulated militia…” only certain other clauses make sense.  The constraint runs the opposite direction also:  what precedes “the right to keep and bear arms…” cannot be any old true statement: it must bear a logical relation to the “command”.

Scalia does not pursue the issue of what that sense making connection between the two clauses is.  Quite clearly, it is explanatory:  being tired is the explanation of why he went to bed.  The whole could have been written: “Because he was tired, he went to bed”.

It seems quite obvious that the two clauses of the Second Amendment contain an explanation (first clause) of why there is a certain right being granted in the second clause.  Once Scalia has allowed that there is a logical connection, an internal connection, between the two clauses and once the explanatory nature of that connection is seen, the first clause cannot be treated as merely prefatory, as incidental to the business of the amendment.  The first clause is not simply warming up in the bullpen: the game is underway.

Realizing that there is a “logical connection” between the two clauses of course causes a headache for Scalia.  For you cannot now just dump the first clause as is his major aim.  What he does upon realizing that that project is now impossible, is to accept that the first clause must remain but shifts to an argument which is an attempt to mitigate the damage:  he tries to weaken the force of the reference to militias occurring in that clause.  That is, the significance of the role of militias has to be explained away.

The relevant passage is this: “‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act.…”  

The best of way understanding that passage is as his way of getting out of the problem caused by the logical connection between the clauses.  He does not deny the connection, but asserts that the same relation exists between other practices than military use and the right announced in the second clause.  That is, while the need or use of guns in a militia is a reason to give citizens a right to them, guns are also needed or used in other activities, and so the “remedy”, the right, could have been justified by reference to those other activities.  That is, the Second could have read “A good musket being necessary for successful hunting, the right of the people….”

That possibility, while it does not further his project of getting rid of the first clause in understanding the Second – the discovery of the “logical connection” now makes that impossible – but it does further his basic aim of rendering reference to militias not important.  How does it work to accomplish that?

The assumption behind of Scalia’s move is that Madison wanted an amendment that provided citizens with a right to personally owned guns.  That is, the Second could (should?) have been written with the second clause only (and so saved a great deal of discussion).  I doubt that there is evidence that that was Madison’s aim – it is a Scalia wish.  However, in Scalia’s story, Madison, perhaps uncharacteristically,  thought it would be worthwhile to add a justification for introducing that right. And so he reasoned: “People must have guns for hunting squirrels, for shooting one’s neighbor in boundary disputes, for committing suicide, but you know the best way of justifying the right is to point out that a militia needs citizens with their own weapons.  So, I’ll use militias as the example of why we should have a constitutional right to gun ownership.”

Does treating the introduction of militias as a mere example seem plausible? Surely it is much more plausible to hold that the notion of a militia is there in the first clause of the amendment because the entire amendment is about militias.  Madison did not just happen to hit upon a reference to a military entity as an example.  As a Clinton clone might say, “It’s the militia stupid”.  The amendment is aimed at setting out the connection between military service and the consequent right to private ownership of a gun.

Recall that Scalia’s problem was how to allow that there is a “logical connection” between the two clauses while yet rendering insignificant the reference to a militia as a feature of that connection.  However, the idea that that notion is nothing more than an example, occurring by happenstance in the amendment’s wording, of that connection is simply not plausible when spelled out.  The notion of a militia occurs there because that is what the amendment is about.

That portion of the opinion in which Scalia recognizes that the two clauses are intimately connected and then tries to deal with that realization comes mysteriously into the text and vanishes abruptly, never to be heard from again.  For immediately afterward, he returns to his main theme, that the first clause is nothing but a preface to the second, and conducts his argument that from that point onward as if only the second clause needs attention.

The central focus of his chief argument is contained in a long paragraph in which Scalia quotes several judicial opinions (along with appropriate citations to them). Below I will omit the citations and reproduce only the material on which Scalia rests this final argument.

“But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause…. ‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’…. ‘the preamble could not be used to restrict the effect of the words of the purview’…. but in America ‘the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.’”  

The best interpretation of what Scalia is doing in that paragraph is that he is making reference to what he, at least, takes to be a maxim of law (also called a law maxim or a maxim of jurisprudence), though he calls it a “principle of law”.   For those (such as myself who was introduced to this topic by attorney) who need some account of the matter, such maxims are general principles to help judges decide how to maneuver.  They are not laws, statutes, but rather aids to understanding laws, to help in applying laws.  While there is no final and official set of such maxims, many originated in 17^th century British common law practice and then passed down into American judicial practice.  Some examples: “He who consents to an act is not wronged by it”, “No one can take advantage of his own wrong”.

Most likely, then, Scalia is holding that there is, at least in America, a maxim of law to the effect that prefaces or preambles to the enacting part of a clearly expressed law have no bearing on how the enacting part is to be understood.  In the case of the Second Amendment, applying the maxim results in the judicial conclusion that the words “A well-regulated Militia, being necessary to the security of a free state”, should play no part in understanding “the right of citizens to keep and bear arms shall not be infringed”.  And so Scalia and the Court can fully ignore the first clause and understand the Second Amendment solely on the basis of the second clause.  That is exactly what Scalia does in his opinion:  at this point attention is given at length to the second clause.  In what follows in the text, the notion of a militia vanishes.

This final argument is radically different from what preceded it.  For there, the aim was to see how the meaning of the first clause is related to the second.  Now, however, questions of meaning, of logical connections, are not necessary.,

What is to be made of that line of argument?  I have no idea whether there is in American legal practice such a maxim, but it is entirely plausible.  For the maxim would be a reminder to judges that prefaces need have no connection whatsoever to what follows.  I can write a book on cooking mushrooms and, publisher willing, have a preface to that material talking about a turtle I had as a boy.  Prefaces are not constrained and so are not to be taken into account in understanding that to which they are prefaces. There is, certainly, a limit to that:  it is possible, since the rules for prefaces are so underdetermined, that an author can, say at the last minute, insert a clarifying message into a preface and save having to revise the body of the text.  So, a judge, relying upon this maxim, needs to tread carefully in relying on it. 

No, the problem lies not with the putative maxim but with Scalia’s coupling it with a claim that the first clause of the Second is nothing other than a preface and so subject to the reasonableness of the maxim.  Schematized, the argument is:

          Premise 1:  prefaces can be ignored in understanding the body of a text

          Premise 2:  the first clause of the Second is a preface

          Conclusion:  Hence the first clause can be ignored in interpreting the Second.

          It is a case of misdirection to get the reader to think of the first premise, its meaning, acceptability and place in judicial decisions rather than on premise 2.    

As noticed earlier, Scalia makes no attempt to justify his regarding the clause as a preface and makes no attempt to reject the obvious alternative:  the Second could have been written “The right of a citizen to keep and bear arms shall not be infringed because a well-regulated Militia is necessary to the security of a free state”.  There is absolutely no difference in meaning between that and what Madison wrote.  But if so written, it is obvious that there is no preface in the sentence.  The maxim, then, would clearly be beside the argumentative point. 

Moreover, as we have already seen, Scalia’s recognition that there is some strong meaningful connection what is said in the two clauses rules out his continuing to talking of one as a preface to the other.  The content of a preface, as the maxim reminds us, lacks such a logical connection to what is then said.  Scalia’s important recognition of that connection entails that he is no longer entitled to talk of a preface here and so his continued doing so renders his most important argument in favor of avoiding talk of militias unuseable.  

 The Second Amendment is about militias – Scalia’s arguments to avoid the first clause and its constituent reference to militias simply do not succeed.

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District of Columbia v. Heller, 554 U.S. 570 (2008)  https://supreme.justia.com/cases/federal/us/554/570/