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 17th 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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