Cass Sunstein: “The Second Amendment: The Constitution’s Most Mysterious Right”
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Cass Sunstein: “The Second Amendment: The Constitution’s Most Mysterious Right”


CASS SUNSTEIN: The
academic universe has three groups, really. Mostly the Second
Amendment, let’s call them, advocates who have
a vested interest in vindicating an individual
right to have guns. The bystanders who look on
with puzzlement and amusement to the debate, and let’s call
them the liberal me-tooers, who are liberal constitutional
law professors who’ve said without, it seems
to me, intensive study that the Second Amendment
advocates are right. And I do detect a little bit in
the liberal me-tooers, at least a little bit of an effort to
establish their own bona fides by showing agreement
with the position which is a little
counterintuitive for them. My coming view is that the
individual right to bear arms reflects the success
of an extremely aggressive and resourceful
social movement, and has much less to do with
good standard legal arguments than appears. We have seen an
unbelievable transformation in the culture of the Second
Amendment in a short time. As late as the early
1990s, Warren Burger Chief, Justice of the United States,
a Republican appointee and well-known conservative,
said on the news hour that the Second Amendment
right to bear arms– the claim that it creates
an individual right– is one of the greatest
pieces of fraud– I repeat the word, fraud– on the American public by
special interest groups that I have ever
seen in my lifetime. Burger said the
year later– a year later, the Second Amendment
doesn’t create a right to have firearms at all. It’s impossible to
understand the current debate without lingering
over Burger’s words. Imagine if Chief Justice
Roberts went on the news hour to say the claim that there is
a right to same sex marriage is one of the greatest
frauds perpetrated on the American public
by a special interest group in our lifetime. That would be an
astounding event, which suggests that
Burger, a cautious person, was not trying to intervene
into a constitutional debate by speaking inappropriately
off the bench about his views. He was instead attempting
just to capture the conventional wisdom. Attempting to say what was
so well known as a fact that to state it in public wasn’t
to say anything controversial at all. Flash forward, if you would,
to just this March when the prestigious US Court
of Appeals for the District of Columbia– the second most
important court in the land– embraced, with great
confidence, the view that Burger has
described as a fraud. What has happened here? We’ve seen such a sea
change that on pages of law reviews the view
that Burger described as a fraud is now described
as the Standard Model– capital S, capital M– in the pages of
good law reviews. What has happened here? Was Burger just wrong? I’m going to try to
approach this question with some
methodological comments, and that is to come to terms
with the Second Amendment we need to have,
don’t we, a theory of constitutional
interpretation. So let’s just notice
that there seem to be four that have helped to
organize constitutional thought over the past century and more. The first, which we can find
in the opinions of Justice Scalia and Justice
Thomas, is originalism which tries to understand
the Constitution’s meaning by identifying the original
public meaning of the document. And that would give us an
inroad into the Second Amendment debate. It would help explain
what it is that people who disagree about
the Second Amendment are disagreeing about. There’s a second view,
let’s just call it bipartisan restraint,
which was prominent among conservative thinkers in
the period of the Warren Court. It still has a
degree of prominence among conservative
thinkers today. The hero of
bipartisan restrained is Justice Oliver
Wendell Holmes who believed that the court
should strike things down as unconstitutional
only when they clearly, and beyond any
doubt, violated the document. The bipartisan restraint view
has an obvious inclination, at least, with respect
to the Second Amendment. The third position, let’s
call it perfectionism, which probably was the Warren Court’s
approach to constitutional law, and probably is the
approach bodied and in Roe against Wade– the
efforts of those who do seem to want the Supreme
Court to rule that same sex marriages must be recognized. The perfectionist believed
that the Constitution’s text deserves respect. So there’s something
that you’re perfecting to which you have
to be faithful, that is a text and a
tradition, but they also believe that it’s legitimate
and maybe required for the court to perfect the
situation by making it as good as it possibly can be. The fourth approach is
usually my favorite, and that is minimalism, and
we minimalists like smallness in two different ways. We like judicial decisions in
the most controversial domains, at least, that are
narrow in the sense that they don’t go far beyond
the facts of the controversy. And also that are
shallow in the sense that they don’t make the
most ambitious claims or resolve the deepest
controversies that divide Americans. The minimalists think
that that shallowness has a place in
constitutional law, unlike in the classroom and
romantic relationships where shallowness is
frequently a vice. And minimalists like
shallowness because they believe that it serves a great
goal of a diverse society which is to make agreement possible
where agreement is necessary, and to make agreement
unnecessary where agreement is not possible. What I’m going to be suggesting,
the upshot of all of this, is that the Second Amendment
movement that we’re seeing, that I think might well
win in the Supreme Court soon, is a form of perfectionism
which is dressed up in originalist guise. So my tentative conclusion is
that the astounding reversal in the conventional wisdom
in a very short time purports to be an
effort to recover the original understanding,
but it has much more in common, actually, with the gay rights
movement in constitutional law than it does with Madisonianism. And the irony of it is that
the gay rights movement has quite insistent moral
principle which, whether or not it’s entitled
to ultimate acceptance, has a claim on our
attention given the arc of constitutional
law over generations. The movement for a
strong individual right under the Second Amendment
can’t claim quite the pedigree that the gay rights claims
do, though minimalists are very nervous about both
forms of perfectionism. OK, we’re going to start
by looking at the text of the Second Amendment,
which provides in full– this isn’t a long text– 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. At first glance, there are two
possible readings of the Second Amendment for English speakers. The first would say
that this creates a non-ambiguous
individual right, there’s no puzzle
here to be solved. The operative clause says
the right of the people to keep and bear arms
shall not be infringed– which does raise questions
about what kinds of regulation would be legitimate
to be sure, but which doesn’t leave any kind of
doubt about the individuality of the rights that are
safeguarded by the amendment. The competing view
emphasizes the preamble, and suggests that the Second
Amendment is unusual– not unique, but unusual– in the sense that
it comes equipped with its own
explanation or purpose. And the suggestion is that
the reference to the purpose delimits the scope
of the right, which is to protect the
well-regulated militia. So the notion would be
a well-regulated militia being necessary to the
security of a free state informs what the right
of the people is. So on a collective rights view,
which is textually possible, individual rights– individual citizens
don’t have a right to bear guns to shoot
rabbits, or to even to safeguard their
houses against marauders. But the national
government has to respect the right of the people,
taken as a collective– collectivity– to maintain
organized militias for the common defense. That would be the idea. Now suppose we are
textualists in the sense that we believed that
the Constitution has to be construed in
a way that respects the meaning of its words,
and we had all better be textualists I
think, otherwise we’re not interpreters. Stare at these
words all you like and you will not be able
to be certain about which interpretation to
choose of the two that are straight forward
for modern English readers. A Duke law professor and
University of Chicago visitor at one point,
William Van Alstyne– an honest broker of
constitutional meaning– got it right, I
think, in suggesting no provision of the
Constitution causes one to stumble quite so much
on a first reading, or second, or third. In fact, Van Alstyne
might have understated it. No provision of
the Constitution, certainly in the domain
of individual rights, is as mysterious as this
one to the textualist. This is the Constitution’s
most mysterious right. If we are textualists who are,
when stymied, originalists too, we at least have a
path for analysis. And this is the
path that attracted Judge Silberman
for the DC circuit, and it would
undoubtedly interest every member of the court,
and acutely interest at least two members. So history will play a
huge role in the debate once he gets to
the Supreme Court, as it has played
the dominant role in the academic discussions
in the last 20 years. The first question we
want to be able to answer is what’s meant by the
right to keep and bear arms. What does that mean? Keep and bear. Presently, to an English reader,
this means to own and carry, doesn’t it? Keep and bear. But it turns out
historically that this seems to have been a
technical phrase in the sense that it referred to weapons in
connection with military uses. You do not bear arms if you
carry a rifle to shoot rabbits. This doesn’t conclude
the originalist debate, but it’s suggestive. It indicates that
the military uses of guns, as opposed to hunting
or purely private self-defense, may well be what’s
signaled by the words keep and bear arms if
those terms are actually a term of art. We’d want to ask, if
we’re originalists, what is the militia? This is puzzling to many
modern readers isn’t it. What is the militia? There are state militias now. I think every state
authorizes the militias, I think about half of
states have militias. But if there are
more than 10 people in the room who actually
know people in militias, count me surprised. State militias do
not have anything like the prominence they did
in the founding period, a point to which we shall return. A constitutional amendment
proposed in the Virginia ratifying convention
offers a clue about the original
understanding. It said the following– the people have the right
to keep and bear arms. Familiar phrase. A well-regulated
militia composed of the body of the
people trained to arms is the proper, natural, and
safe defense of a free state. This phrasing
suggests, doesn’t it, that the militia is
the body of the people. That is, it’s
able-bodied males who might be or have been
trained and enlisted on the state’s behalf. With that point, we
might be converging on some version of
the individual rights view in the following sense– the view that individuals
do have the right to have guns, at least
so far as gun ownership enables us to band together
to defend ourselves. Not on this view against the
national government, though possibly that as well,
but against invaders. OK, this reading– and were
trying to put the individual rights view in its
most plausible form– this fits, pleasingly, with
the civil Republican tradition that greatly influenced
the founding generation, and starts to make sense of
why the right to bear arms might be historically
attractive from the founders point of view. Republicans believed that
a professional or standing army could endanger liberty
because of its separateness from the people. From the standpoint of
civic Republicanism, an engaged and
armed citizenry is the best way of protecting
the national defense. It’s a sibling on this view,
the right to keep and bear arms, to the right to free
speech and the right to petition the government
for redress of grievances. We the people could
be sovereign in so far as we could
speak out, petition the national government for
help, and defend ourselves maybe even against it. Further supporting
the pro-gun reading– we’re trying to make the
original– this case powerful– Blackstone, a big
influence on the founders, referred to the right to bear
arms as a public allowance under due restrictions of the
natural right of resistance and self-preservation when the
sanctions of society and laws are found insufficient
to restrain the violence of oppression. The statement under
due restrictions is suggestive, indicating that,
like the right to free speech, the individual right
to keep and bear arms might be subject to
reasonable limitations. But it suggests
there is a right, a right that is of resistance
and self-preservation. Joseph Story, a Supreme Court
Justice and a very influential early commentator, said the
right to keep and bear arms has been justly considered as
the palladium of the liberties of a republic– note his word, republic– since it offers a
strong moral check against the usurpation and
arbitrary power of rulers. So two, some state
constitutional provisions seemed clearly to
create individual rights in a way that
fortifies the notion that the national
document does that, too. Pennsylvania’s constitution
seems the clearest of all– and that would matter,
Pennsylvania’s an important state then and still now– their constitution says
the right of the citizens to bear arms in
defense of the selves and the state shall
not be questioned without any kind of
preamble, suggesting there is an individual right,
the palladium of the liberties of a republic, Blackstone’s
right of resistance and self-preservation. A Minority Report in
Pennsylvania objecting to ratification of
the Constitution– this was before the Bill
of Rights was added– referred broadly to
the people’s right to bear arms for the
defense of themselves and their own state,
or the United States, or for the purpose
of killing game. That seems, doesn’t
it, like a smoking gun in favor of the individual
rights position, suggesting that
hunting is itself part of the set of activities
for which the individual right has been created. It’s misleading, though, to
take quotations out of context. And the original sources,
once they’re put together, start to look more ambiguous
than they do at first glance. Blackstone’s
discussion of the right to bear arms, and its connection
with the right of resistance, goes on to link that right with
the ban on standing armies– an idea which is
mysterious today, isn’t it? I’m going to get
to it in a moment. Wherever standing
armies are kept up, Blackstone said, and
the rights of the people to keep and bear arms
is prohibited if not– liberty if not only annihilate–
if not already annihilated is on the brink of destruction. Blackstone, thus,
linking very closely the individual
right to bear arms with the ban on standing armies. Taken as a whole,
Story’s own discussion emphasizes the uses
of the militia more than it does an individual
right to have guns. North Carolina’s constitution
reads very differently from Pennsylvania’s. It says the people have
a right to bear arms for the defense of the state. And as standing armies
in time of peace are dangerous to liberty,
they ought not to be kept up. If we read Pennsylvania’s
seemingly unambiguous provision against the backdrop of
North Carolina’s reference to the standing army, the
right of the citizens to keep– to bear arms in defense of
themselves and the state shall not be questioned
starts to become less clear than it did at
first glance, doesn’t it? What does that mean exactly? Does that mean that
people can bear arms in lieu of a standing
army rather than creating an individual right? There was, in the Pennsylvania
Minority Report, a reference to the right to bear arms
for purpose of killing game. Apparently there’s
no other reference anywhere in the
founding period that links the right to bear
arms with the right to hunt. That’s the only one. Suggesting that it’s an anomaly
rather than representative. There are further puzzles. The Tennessee Supreme
Court writing in 1840 against the backdrop of the
founding experience, which was still fresh and a quick
few decades of experience with its interpretation,
summarized in the following way the real object of the
right to keep and bear arms is the defense of
the public, and thus refers to military use. It follows, the court says, that
a hunter may carry his rifle for every day for
40 years, and yet it would never be said of him
that he had borne arms. Much less could it be said that
a private citizen bears arms because he has a dirk
or a pistol concealed under his clothes, or
a spear and a cane. What I’m emphasizing is not the
acuity of the Tennessee Supreme Court– who knows about that– but it’s confidence in
its judgment about what the meaning of the
phrases were in an opinion where the experience of
ratification was still fresh, and when a summary
was what was sought. Actually, for the
individual rights position, things get more
deeply puzzling still. For many constitutional
problems, the founding era discussions
seem familiar, or at least familiar enough I think. Modern readers, lawyers
first approaching the problem, people who are
clerking for judges initially trying to understand things– it’s not so hard to get into
the debate over the power to make war, and
its distribution between the president
and Congress. The nature of the
right to a jury trial, the composition of the senate. These are deeply mysterious. But for the Second
Amendment, we quickly enter a different
nation whose problems are so different from
our own that it’s very difficult to figure
what they’re talking about. In the Federalist
Papers, Madison argued– and this was a crucial passage
in the Federalist Papers– that the fear of a
standing army was baseless because any such
army, a standing army on the part of the
national government, would be badly out
numbered by quote, “a militia amounting to near
half a million of citizens with arms in their
hands offered by men chosen from among
themselves fighting for their common liberties,
and united and conducted by governments possessing their
affections and confidence.” It’s hard to think our
way back, isn’t it, into a world in which standing
armies maintained by the states were seen as an
indispensable and effective military safeguard
against the might of the national government. We do have a National Guard,
that’s a problem for Madison not a solution,
and states as noted continue to authorize
their militias. But do you know
anyone who is in one? Do you know if
your state has one? A historian seeking to recapture
the original understanding of the Second Amendment
said if we were really trying to be
faithful to that, we would have to recreate the
world of the minute man. A nightmare, he says, in which
states would mandate that all Americans– probably now
women as well as men, if we’re really
originalist men– would be required to
receive firearms training and to possess their own
military style assault weapons. If this puzzle isn’t
getting to you, let’s try to get toward
the original meaning by looking at the first
draft of Madison’s Second Amendment, which he wrote. It says a well-regulated
militia composed of the body of the people being the best
security of a free state, the right of the people to
keep and bear arms shall be– shall not be infringed. But no person
religiously scrupulous shall be compelled to bear arms. Huh? If contemporary Americans were
writing a new constitution, would any sane person
suggest this language? Of course we could
imagine a proposed right to keep and bear
arms, but what are the rest of the words doing? But no person
religiously scrupulous shall be compelled to bear arms? Madison’s draft is unmistakably
focused on the military. Without that focus, it
would be senseless to follow the right with an exemption for
those with religious scruples. If the ratified Second
Amendment is substantively identical to Madison’s draft,
then Pulitzer Prize winning historian Jack Rakove– an honest broker of
constitutional meaning– might be right to affirm that
the purpose of the Second Amendment is to vindicate the
proposition, or a common place, that liberty fared better
when Republican policies relied upon a militia of citizen
soldiers for their defense rather than the die–
risk the dire consequences of sustaining a permanent
military establishment. Ponder over the relevance
of that to current debates where, sure, we have a
permanent military establishment with the equivalent
of a standing army. In the debate in the second– over the second– what
became the Second Amendment in the House of
Representatives, Elbridge Gerry said what, sir, is
the use of a militia. It is to prevent the
establishment of a standing army, the bane of liberty. What seems to be
emerging from this view is that the original
understanding is not adequately captured by either
of our two principal contenders. This is not an individual
right in the sense that the Second Amendment
advocacy scholars urge, nor is this a
collective right in the sense that the Second Amendment
advocacy scholars angriest critics respond. It’s instead a
civic right designed to guarantee that citizens
can keep and bear arms to the extent that’s
necessary for them to discharge their
responsibilities to participate in a well regulated militia. This would mean that on
the original understanding, the national government
could not take arms out of the hands of
citizens to the extent that those arms are part of
the operation of militias. But in so far as modern
gun control legislation has nothing to do
with that, it’s very difficult to
figure out how to map the original understanding
onto the current practices. Consider, for example, that
part of the law of the District of Columbia that requires
citizens to keep lawfully owned shotguns bound at
home by a trigger lock. Suppose that a citizen
objects, as citizens have been objecting, that
the trigger lock interferes with his efforts at
self-defense against criminals. What on earth does that have
to do with the Second Amendment as originally understood? My tentative suggestion is
that the individual right to have guns, as it’s
being conceptualized now, is best taken as a
contemporary creation and a reflection
of current fears, not a reading of civic
centered founding debates. Modern gun owners who were
invoking the Second Amendment on the basis of a principle
they favor are perfectionists. Not so different
from older people who tried, unsuccessfully
I’m pleased to say, to get the equal
protection clause read to strike down
mandatory retirement laws. OK. Originalists at
this point, I think, should be inclined to reject the
claim for an individual right. They have some more work to do. The bipartisan restraint
people know exactly what to do. The document, read in
its historical context, lacks the kind of
unambiguous meaning that would support a Holmesian
rejection of gun control legislation. But we have a group
of minimalists here who are interested in
thinking about other things, and they’re interested, in
particular, in two questions. First, what have the– what’s our tradition been, in
terms of judicial practice, extending over time? And second minimalists
want to know, following the great
conservative Edmund Burke, what have our traditions
been like apart from what’s happened in the courts? How have– how has our
culture understood the Second Amendment, not just
in the founding era but through the
arc of our history? Well, in terms of
judicial developments, it is striking and noteworthy
that well over two centuries since the founding, the no– the Supreme Court
has never suggested that the Second Amendment
protects an individual right to have guns, not once. It would be amazing, though,
given that fact though– though don’t be surprised
if the first time it happens is in the next
three or four years. The leading decision
thus far is from 1939, a case called United
States against Miller, which bans possession
of a sawed off shotgun. The court unanimously rejected
the trial court’s conclusion, that the ban violated
the Second Amendment. The court said that the obvious
purpose of the Second Amendment was to assure the continuation
and render possible the effectiveness
of the militia, and that its
declaration [INAUDIBLE] must be interpreted and
applied with that end in view. The court said there
was no evidence showing that the possession or use of a
sawed off shotgun at this time has some reasonable
relation to the preservation or efficiency of a
well-regulated militia, end of case. This passage does
not lack ambiguity, but it seems to
suggest, at a minimum, that Congress has complete
power over weapons that are not ordinarily
used by the military. It also seems to reject
the strongest versions of the individual
rights interpretation with its purposive Burger-like
reference to the militia. It’s also important
to pause over the fact that if the Second Amendment
creates an individual right, then it ought to be incorporated
by the 14th Amendment and applied to the states. But the Supreme Court early
ruled that the Second Amendment has not been
incorporated and applied and does not apply
to the states, and the Supreme Court has
never questioned that judgment. Well we might think that
the early pronouncement by the Supreme Court have
been run by recent research, and it’s possible
that that’s so, but the minimalists
would like to know how has our legal system outside
of the Supreme Court understood the Second Amendment. And it turns out,
until very recently we have an unbroken
pattern which is that the Second Amendment, in
the federal courts at least, has been taken not to create
an individual right to possess a firearm. This can be found in multiple
court of appeals decisions. It was not until
the 21st century that federal courts adopted
the pro individual rights interpretation, with one in
2001 and another in 2007. Speaking in terms of the arc
of our legal development, this is Second
Amendment revisionism, isn’t it, rather than
continuity with a tradition. What about social practices? Well the Burkean– Burkean minimalists who want to
build slowly and incrementally from past decisions
in a way that’s closely in tune to what
people have actually done, which is why the minimalists
don’t like striking down bans on the use of
the word under God in the Pledge of Allegiance. And why minimalists are very
skeptical about the claim that the government
can’t recognize– take your pick– the
existence or people’s belief in the existence of God on
the grounds that that kind of neutral reading– neutral between religion and
non-religion– of the religion clauses runs over like a truck
many decades of practice, which has gone the other way. So, too, the Burkeans
are interested to know what in the last 100
years plus has been done. Since the Civil War, one or
another form of gun regulation has been common. And it has been rarely
challenged, even, on constitutional grounds. So one recent reading of
the last century and a half suggests the following pattern. A substantial body of laws
regulating weapons possession and a small number of opinions
addressing Second Amendment objections to such
laws, with no opinions from federal appellate
courts invalidating any modern regulations, and an
apparent lack of any interest by the Supreme Court in taking
fundamental Second Amendment issues. This suggests that
whatever the view of the founding
generation, ours has been a tradition in which
the Second Amendment imposes indiscernible or very
weak restrictions on the power of the
government to regulate use and possession of weapons. Minimalists at
this point will be very nervous about any
vindication of the Second Amendment right as conceived
by the individual rights crowd. The minimalists will think
this is way out of step with the existing precedents. It looks like a
bolt from the blue, it doesn’t look
very incremental, and it is out of
step with a tradition rather than in accord with it. The minimalist, though,
is disinclined as well to reject a deeply
felt commitment on the part of a large segment
of the American republic. There would be a form of
prudence, and maybe charity as well, in Supreme
Court rulings that bracket the
deepest questions about constitutional meaning
and attempt, if fairly possible, to leave open the
option of holding, at some point in the
future, that the Second Amendment creates some
individual right to own guns. So the minimalist will
be drawn to the view that precedence in history
forclose an individual rights, but because of the minimalist’s
interest in narrowness and shallowness the
minimalist were very hard– as in the case
involving under God– to leave the issue undecided. I’m essentially done. My major submissions are,
first, textualism just doesn’t help us. The claim by those
who believe that this is an individual right, that the
Second Amendment speaks plainly on behalf of that
position, is a fraud. The claim by the
collective rights crowd, that the purpose clause
of the Second Amendment clarifies that this is a
collective right rather than an individual right,
is equally a fraud. The national– the
National Rifle Association, in so far as it evokes the
original understanding, can’t be accused of fraud. There’s material in the
history which is plausibly supportive of their claim. But at least my current
view, based on the history, is that the original
understanding does not justify the contemporary
understandings of the Second Amendment pressed by
individual gun owners. The entanglement with the
ban on standing armies is just too clear and too
firm to support the view that non-military
uses of guns are protected by the
Second Amendment as against official regulation. The minimalist wants to rule
as narrowly as possible, but finds it
troubling to preserve the existence of an
individual right in so far as it’s hard to find anything
in our cultural practices as opposed to the
beliefs of many to defend the
preservation of the right, but the minimalist
is going to work hard to try to do that out
of humility and respect for fellow citizens. We’re left with one
candidate to explain the driver of the
Second Amendment truck, and that is perfectionism. This is an influential social
movement which is that– which is deeply
committed in principle to an individual
right to bear arms. There are arguments
that are plausible, as a matter of social
science certainly, that restrictions
on gun ownership do very little to protect people
and it might, on balance, not protect them. The claim that gun
control is a fantastic way of reducing the problem of
violence in the United States appears not to be sufficiently
supported by social science. I’m not speaking to
that, but the movement is perfectionist in character. The first oddity is that
this form of perfectionism, as briefly signaled
at the beginning, lacks the moral appeal of
the forms of perfectionism that produced the ban on
apartheid in the United States, and the ban on
sex discrimination by state and federal government. At least in those
circumstances, there was a strong claim from
political realities and moral principle that the
best reading of the Equal Protection Clause forbid– was inconsistent with
racial subjugation and with the prohibition on
equality between men and women as a matter of state
and federal law. This form of
perfectionism has all of the fervor of those
movements I think, but lacks the moral appeal. The second oddity is that
this movement, unlike those, is wrapped far too confidently
in historical garb. Thanks. [APPLAUSE] So tentative thoughts
you’ve just heard. I’m eager for questions,
objections, puzzles. Yeah? STUDENT: Just to help us
facilitate our [INAUDIBLE] article, just– what are the– what are the
kind of arms regulations that would be regarded by the
court as blatant infringement of the people’s
right to maintain a well-regulated militia? CASS SUNSTEIN: OK. If after the founding period,
the national government said that the states
can’t have militias– or they can have militias,
but they can’t be armed– that would be a clear violation. So if the federal
government now said that the states
can’t have militias, or that the state
militias can’t have guns, that would be a clear violation. Then the question
is what can we do to understand contemporary
gun control regulation as in the same ballpark? In the District of
Columbia, that’s the case. There’s a quite
draconian ban which seems to be a flat ban
on owning guns in homes, and it’s not crazy to say that
that de-fangs the citizens ability to defend
themselves against, what, the national government
in a way that makes impossible the District of
Columbia as having a militia. And one can say this, but
there’s something a little wild about that, isn’t it? I mean, these are the sorts
of sentences you could write, but you might think to yourself
what am I talking about. That in the District
of Columbia, people can own, what, handguns
at home, and the reason they can own that is that allows
them to band together and fight against the national
government if it attacks them. That’s what Madison
was concerned about. Even that reading, while not
implausible historically– it’s very confusing
because Madison saw this as closely enmeshed
with a ban on a standing army. But now we have the
Army, and the Navy, and the Marines,
and the Air Force. And so what are we
imagining, and we’re trying to be originalists,
in striking down this ban? We’re imagining that people
in the District of Columbia will have guns with
which they can fight off the Marines and the Army? Our world is so radically
different from theirs. Now the DC Circuit
was concerned, in the case from last
March, about rendering the Second Amendment
a dead letter, fearful that the
interpretation that rejects the strong
individual rights view makes the Second
Amendment meaningless. And that is a
reasonable question to say the only office
of the Second Amendment now is to prevent the national
government from stopping states from having militias, or from
de-arming the state militias. But it may be that is what
the Second Amendment did. That’s what it did,
and it still does that. Yeah? STUDENT: Do you
think there’s support for the collective
rights view and the fact that, under the original
enumerated powers, the federal government would
have had very limited ability to ban individual
ownership of guns anyway? CASS SUNSTEIN: Well
I think there’s the following
legitimate claim, which is any national
regulation has to fall within an enumerated power. So I haven’t said anything
about the possibility that federal gun
control could be beyond the power Congress has
under the Commerce Clause, and we could imagine
forms of that which would run into the
court’s decisions, say, in the Violence
Against Women act case where generalized criminal
legislation whose relationship to commerce is unclear. So that’s clearly right,
but I think your question is more subtle than that. Could we think that if the
federal government originally lacked power over guns– not within the
enumerated power– then doesn’t that
support the view that the Second Amendment
is an individual right? I don’t think so. I think the way the militia
stuff was structured was a careful state and federal
compromise in a way that is consistent with
what I’m suggesting was a civic conception
of the Second Amendment at its origins. And to get a hold of that,
let’s notice that the Second Amendment isn’t the
only place where the militia is referred to. The Constitution has the power– and try to think your
way back into a world where this would be put in
the nation’s constitution. It has the power to provide
for calling forth the militia to execute the
laws of the union, suppress insurrections,
and repel invasions. What’s that about? Well, it fits with
the civic view. There’s something
called the militia– the state militias. Congress can call it
forth to repel invasions. That fits beautifully
with the notion this is all about
standing armies– stopping standing armies. Congress also has the power– I think this does get very
precisely at your question– to provide for organizing,
arming, and disciplining the militia. So the national
governments enumerated powers include two things– it can provide for
calling forth the militia, and it can provide for
organizing, arming, and disciplining the militia. And with the Necessary
and Proper Clause, there’s probably
a lot it can do. Yes, there. But the states retain
power over the appointment of the officers– think of Madison’s
reference to don’t worry about the federal
government attacking because the militias will
be there to save the states, and then wonder about
the how to map that onto a contemporary situation. The states retain the
power of the appointment of the officers,
and the authority of training the militia
according to the discipline prescribed by Congress. Now this sounds a little
like an unrecognizable world, but this one I
think we can think our way back into once we
know about the standing army concern. The states train the militia
and they appoint the officers. Congress can prescribe
the discipline, organize and arm them,
and call them forth. Congress does have enumerated
powers, but they’re restricted. That fits quite well with
the civic understanding, doesn’t it? That this is preserving
Madison’s concern, which was that the
standing armies would be present to defeat the
Republican goal of allowing citizen soldiers. We don’t really have citizen
soldiers in the same sense. So on this view, which
those members of Congress who were talking about in
reinstituting a military draft, there’s actually– I’m going to phrase
this cautiously. There is a plausible
view that they are recovering original
constitutional understandings better than those who are saying
there’s an individual right to use guns to kill animals. The notion that Congress has the
power to call forth the militia to execute the
laws of the union, suppress insurrections,
and repel invasions– the militia, everyone
knew what that meant– can organize, arm,
and discipline the militia, while
states appoint officers, train them according to
Congress’s discipline. That suggests, as
you say, there’s a very careful
allocation of authority between the state and
the national government– this was a really big deal. And the allocation
was one in which the right to keep and
bear arms, on this view, was inextricably
intertwined with militias. This makes more plausible
something that, to me, had not seemed plausible originally. Originally it seemed, to me,
that the Pennsylvania provision was clear, at least. The Pennsylvania
provision had no preamble. Remember? It didn’t read like
the Second Amendment. It said that the right
to keep and bear arms– the right of the
citizens to bear arms in defense of themselves and the
state shall not be questioned. That seems, at first
glance, very clear. And then we could
go one of two ways. We could say well the
national government– there’s the preamble which
suggests the national government had a more limited
function than Pennsylvania’s. Or you could go the other
way, that the Pennsylvania one– which looks like
the operative clause of our constitution’s
Second Amendment– suggests there really
is an individual right. On this view, looking
at Congress’s power over the militia, Pennsylvania’s
apparently plain statement– the right of the citizens
to bear arms in defense of themselves and the state
shall not be questioned– isn’t so clear. It’s about no standing armies. It’s saying that citizens– the military force is
in us, not in them. And what does that have
to do with at least most restrictions
on gun ownership? One thing that’s troubling
for the argument I’m sketching is that suppose a state said
people can’t have guns at all. That might run into the
original understanding, might it, because
that would render impossible state operating
militias in which people have guns. Now even that seems,
to me, very confusing to think through because the
militia in which people have guns is all about no
standing armies, we already have– we now have
standing armies, or if we have standing
armies in it to enable people to protect themselves
against the standing army. What a ridiculous thought. On the other hand, maybe the
fact that people have guns, ordinary citizens have
guns, is some deterrent against the national government
coming and killing us. But this does seem preposterous
that what we’re talking about here must be about– when I say preposterous,
I mean really it must be about contemporary
concerns and fears rather than something that was
driving Madison. I guess I’m still a little
bit unclear about what a minimalist does when
there’s a frontal attack, you know, on asking
for this right. I mean, you suggested that if
he says that the right doesn’t exist, then we’ve got problems
possibly with armed security. And if he says it
does exist, you’re saying that’s a little bit too
far of a step for a minimalist to take. Does he just leave
it up to the states, or what does a minimalist do? OK. The minimalist likes
to do two things when the nation
is deeply divided, and when the minimalist is
quite unsure of what’s right– if those conditions
are both met. Minimalists, first,
wants not to take cases, wants to render things
to try to deny certiorari or to not to get to the merits. There are two, I think, good
cases where the court did this. One was under God under
the Pledge of Allegiance where you could write an opinion
going either way on that, it’s not so hard to do that. A lot of the justices
who refused to– well, probably at least one of
the justices who just– who joined the opinion refusing
to resolve the issue thinks, I don’t have a particular
person in mind, but there’s probably
at least one who thinks privately under God
in the Pledge of Allegiance that violates the
Establishment Clause, and wanted not to resolve
it because of the uproar it would create in a way
that would offend citizens who deserve respect. So you could use the
doctrine of justice ability, or a denial of certiorari. So this would suggest the court
shouldn’t take the DC Circuit case, even though the DC Circuit
case did something very bold, and I believe far too
confident in selecting a very controversial
reading of history to strike down acts of Congress. OK. If the minimalist can’t
do that, the minimalist would like to
resolve the question in a way that leaves the
hardest questions unanswered. So we could imagine
a gun control law that says people
have to keep shotguns at home with trigger locks
and say that whatever the meaning of the
Second Amendment, the amendment isn’t
violated by this one. So even if there’s
an individual right, recall Blackstone and
due restrictions– even in Pennsylvania
that dissenting that Minority Report referred
to reasonable restrictions, these are reasonable
restrictions. So the minimalists
would want to bracket that, but you’re quite right
that there will be situations which will hold the
minimalist’s feet to the fire and the bracketing won’t
work, and the DC Circuit law may be sufficiently
aggressive that that’s so. So let me free associate
a little bit here. OK, if you think of the sex
discrimination cases and Brown against Board of Education– Brown, unlike Roe, was
not a bolt from the blue. In fact, there was a
litigating strategy by Thurgood Marshall
and colleagues that went case, case, case,
case, case, case, case so that by the time of Brown,
segregation in the United States was like a building whose
foundations had been removed and a little press
and it collapses. If the court had ruled in
1910 that segregation violates the Constitution,
that would have been a social upheaval that was– the ground hadn’t been prepared. Roe against Wade, by
contrast, was a blow to democratic
processes that didn’t go– that’s didn’t work with
them, and listen to them. In the area of sex
discrimination, we now have, contrary to
the original understanding, a robust ban on
sex discrimination by the state or
federal government. Know Equal Protection
Clause, by the way, applies, remember, to
the national government. So the constitutional
foundations of the ban on national
sex discrimination, from the originalist’s point
of view, are a real mystery. But that worked in minimalist
fashion case, by case, by case. It didn’t come immediately. So the minimalists would like
whatever happens to the Second Amendment to happen through
a process of learning and democratic exchange rather
than, pardon the metaphor– [GUN SHOT SOUND EFFECT] –a gunshot. So the DC Circuit case, which
had a high degree of ambition in it– that came from
the Supreme Court. While sufficient
numbers of Americans would approve of that, that
it wouldn’t be an upheaval, and while the, I believe,
social science case for gun control laws of the
sort this interpretation forbids is weak enough that it’s
not it is a matter of policy or horrifying event still is
a matter of sound practice. It would look a lot
like Roe against Wade. And what is– what is keeping
me puzzled about all this is the Burger early
’90s current situation. The radical change in
constitutional understandings in such a short time
where, mind you, the Chief Justice of
the United States– conservative
Republican appointee– said publicly this is the
greatest fraud committed on the American
public in my lifetime in a way that was meant to
state a fact, not to express, highly inappropriately,
a view on a then disputed constitutional issue. And now it’s all changed. So the short– this is
not the short answer. The short answer is try to avoid
the big question if you can, the minimalists wants. If you can’t, then you’re stuck. Yeah? STUDENT: You said the Second
Amendment is not incorporated against the states, right? So if they can amend around
their own constitutions, can the states ban guns? CASS SUNSTEIN:
Well, the statement that the Second Amendment
is not incorporated, so as to apply to
the states, is meant as a statement of existing law. It’s not meant as a
normative statement. So under existing
law, the Supreme Court has never said that the
Second Amendment applies to the states, and
it said the opposite. So if this view holds, then
states can regulate all they want and the national
government can’t. And if anything like the
view I’ve suggested is right, that’s fine because the federal
government was the object of the Second Amendment. The concern was the federal
government de-fanging the states, and so there is
a plausible originalist view, contrary to the one
to which I’m inclined, which says that the federal
government remains de-fanged in this way, but
the states aren’t. When you say that the Second
Amendment isn’t incorporated, many Second Amendment
advocates would say those are fighting words– taking the statement
not as a description of a current law,
where that is accurate, but as the best interpretation. And on their view, the First
Amendment is incorporated, the Fourth Amendment
is incorporated. If we’ve incorporated
the other rights, and basically we have with a
couple of little exceptions, the Second Amendment
is incorporated too. And here’s a point for
the Second Amendment advocates, a
concession to them– something which I
think they are correct. If the Second Amendment does
create an individual right rather than a collective
right or a civic right, then incorporation does follow. So if they’re correct in
their principle submission, then they’re probably correct
on the incorporation issue too. STUDENT: This will
be the last question. STUDENT: [INAUDIBLE] have
an understanding as to why the explicit ban
on standing armies, if that was the concern,
[INAUDIBLE] claimed about makings of militia– [COUGHING] –why is it a raid [INAUDIBLE]? CASS SUNSTEIN: That’s
a great question, and part of the answer
is at least that of the founding generation
was split on the standing army question. Many of the national
government fans thought a standing
army was indispensable and thought militia– you
know, that’s not enough. So many of them thought
that state militias were ineffectual, and had
proved themselves ineffectual in the preceding decades,
and what was needed was a standing army. So while the hatred
of the standing army did emerge as a component of
the compromise between state and federal relations,
a flat ban– a flat ban– there was not
a consensus in its favor. What there was a
consensus in favor of was that a
well-regulated militia is necessary to the
security of a free state. And what makes this
particularly confusing is that that’s inconsistent
with the existing practices. Thanks. [APPLAUSE]

11 Comments

  • Chris Lemaux

    What a Marxist POS. No wonder O dumbass wanted him in his cabinet, Sunstein thinks just like Odumbass. They're both Marxist Pos.

  • RetSquid

    The 2nd Amendment didn't create any rights, it just protects the individual's right to keep and bear arms that existed long before it did.

  • RetSquid

    How does his argument stand up against the rights of the People in the 4th Amendment?  Is the 4th only a right of the people and not a person?

  • John Dough

    I find it ironic that Sunstein is from Concord MA. The very place where a little squabble was started when the British came to confiscate "firearms". Is it really a "mystery" what the intent of the amendment was? Really?

  • l l

    Pennsylvania's Constitution of 1790 speaks of bearing arms in two places. Of the several constitutions this one is most relevant since it was ratified just three years after the U.S. Constitution.

    Article VI
    Of the militia.
    Sect. II. The freemen of this commonwealth shall be armed and disciplined for its defence. Those who conscientiously scruple to bear arms, shall not be compelled to do so; but shall pay an equivalent for personal service. The militia officers shall be appointed in such manner, and for such time, as shall be directed by law.

    Article IX
    To bear arms.
    Sect. XXI. That the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.

  • The Messenger

    Its too bad Cass Sunstein doesn't know about this. I'm a historian. This is new..https://medium.com/militia-stand-down-the-first-objective-reading-of/militia-stand-down-the-first-objective-reading-of-the-2nd-amendment-58d51f2d42e4

  • ken1139

    Cass, there is nothing mysterious about the Second Amendment: the American peoples' right to keep and bear arms is a natural and unalienable right. This right was not granted by government, and it can not be repealed by government. In fact, the US Bill of Rights ensures that government will not even infringe upon that right. The government HAS NO LEGAL POWER to write any laws, no matter how seemingly reasonable, that infringe upon our rights. Simple.

  • TheLoneRideR

    Mysterious indeed! I am reminded of the fictional character of the police prefect in Edgar Allen Poe's story, who " had a fashion of calling every thing "odd" that was beyond his comprehension, and thus lived amid an absolute legion of "oddities.""  Funny how those who want to take away people's stuff always seek to obscure any constitutional protection against that theft finding it conveniently "mysterious"…

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