“Just when I thought I was out, they pull me back in.” With due apologies to Al Pacino, that’s my reaction when Dennis Henigan and Erwin Chemerinsky persist in rehashing the question whether Second Amendment rights can be exercised only in the context of militia service — a question that has been laid to rest, probably for our lifetime, by the U.S. Supreme Court.
Reluctantly, therefore, I address a couple of Chemerinsky’s arguments. First, he contends that the Court in Miller “expressly declared that the Second Amendment was limited to safeguarding possession of firearms for militia service.” (Emphasis added.) Untrue. The McReynolds opinion, whatever its other infirmities, was crystal clear in focusing on the weapon, not the person. Not a single mention was made of Miller’s militia status or service. The firearm — a sawed off shotgun — was not self-evidently of a type that promoted a well-regulated militia. But Miller’s use of the weapon — transporting it across state lines — was for private, not militia purposes.
Indeed, if the opinion had hinged on Miller’s militia status, the Court would never have inquired about the utility of a sawed-off shotgun. McReynolds would have held that Mr. Miller — obviously not engaged in militia service — had no ground to claim Second Amendment protection. Instead, McReynolds remanded the case for a new trial, presumably to include evidence about the military’s use of sawed-off shotguns. If Miller could show that his weapon was protected, then his use of the weapon for both militia and non-militia purposes would have been protected as well.
Second, Chemerinsky claims that “both halves of the Second Amendment are ‘operative’ ” and that Justice Scalia treated the Amendment as if the militia clause didn’t exist. Again, not true. The militia clause certainly has meaning, as recognized by Scalia, but the clause is explanatory, not operative.
Imagine a modernized version of the ratification debates: Federalists and anti-federalists express their strongly held views over radio, tv, and in Internet blogs. Both groups understand that free speech is a natural right of citizens, passed down as part of our common law heritage. The federalists, however, have concerns about blogs. The potential for blog abuse is substantial, and the federalists want the new national government to impose meaningful restrictions. But the anti-federalists resist, and their votes are key to ratifying the Constitution.
As part of a compromise, the federalists promise a Bill of Rights that will include a provision mollifying anti-federalist reservations about national government control over blogs. The provision would be added to an amendment ensuring free speech. Here’s the resultant language, as adopted: “A well-managed blog, being necessary to sustain a free society, the right of the people to express their views on any subject shall not be infringed.”
Chemerinsky and Henigan would have us believe that free speech would thus have been constitutionally protected — but only when expressed on Internet blogs; not radio, tv, or other media. The flaw in that interpretation can be traced to Chemerinsky’s insistence that the prefatory clause is “operative.” It is not. Instead, it sets out one reason, among others, for the existence of a right to free speech. Analogously, the militia clause sets out one reason, among others, for the right to keep and bear arms.
In reality, the militia clause was a means to encourage ratification by the anti-federalists, who were fearful of both standing armies and an armed subset of the militia, which might have been equivalent to a standing army. By guaranteeing that all individuals, not just those in militia service, would have the right to keep and bear arms, the federalists assuaged that fear.