Should 2A Exist?
There's a deeper point about the Second Amendment.
“If you read the decision, it’s interesting. There are all kinds of references to obscure 17th century documents. Strikingly, he never mentions once the reasons the founders wanted the people to have guns, which are not obscure.”
“So the ‘history and tradition’ doctrine shouldn’t be applied in a selective and hypocritical and dishonest way—you’re engaged in something fraudulent if you bring in ‘history and tradition’ whenever it supports your conclusion and then disregard ‘history and tradition’ whenever it undermines your conclusion.”
“So there’s no reason for 2A to exist if we pay attention to ‘history and tradition’—that’s the deeper point that people should spotlight, whereas the fights over interpretation are secondary.”
“It’s very hard to change the US Constitution—the realistic strategy is to reverse Heller, restore the longstanding interpretation of 2A, and make 2A virtually irrelevant again. But people should know all about the reasons behind 2A and why those reasons are obsolete.”
There’s a ton of debate about what the Second Amendment—“2A” for short—actually refers to. But this debate might be a distraction from more important issues.
The Less Important Thing—Interpretation
2A’s text reads as follows:
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.
So is it supposed to mean that states have the right to raise “well regulated” militias? Or is it supposed to mean that individuals have a particular right?
District of Columbia v. Heller was the landmark 2008 decision that interpreted 2A to refer to a right that individuals have—Antonin Scalia wrote the majority opinion in Heller and you can read the decision online.
Check out the following material on this whole debate about how to interpret 2A:
“To Keep and Bear Arms” (21 September 1995)
“The Supreme Court’s Worst Decision of My Tenure” (14 May 2019)
“Right-Wing Supreme Court Continues Its ‘Great Fraud’ About the Second Amendment” (24 June 2022)
These pieces establish that Heller was an extreme departure from the traditional interpretation of 2A.
Garry Wills says—in the 21 September 1995 piece—that “the last decade” had seen a change in “attitudes toward the Second Amendment” due to an “outpouring of articles justifying individual gun ownership on the basis of the Second Amendment”.
Erwin Chemerinsky says—in the 25 July 2008 piece—that every “Supreme Court decision interpreting the Second Amendment, and every federal court of appeals decision until a few years ago, rejected the view that the Second Amendment protects an individual’s right to have guns other than for militia service”.
John Paul Stevens says—in the 14 May 2019 piece—that pre-2008 “the invalidity of Second Amendment–based objections to firearms regulations had been uncontroversial”.
And Jon Schwarz says—in the 24 June 2022 piece—that “no law review article from 1888 (when they were first indexed) through 1959 ever concluded the Second Amendment guaranteed an individual right to a gun” and that it’s “only recently that the Supreme Court has veered toward its current view”.
So Heller was a dramatic break from the way that 2A had always been interpreted—nobody can question whether the Heller interpretation is new.
But did Scalia actually have a good argument? I took these notes based on the 25 July 2008 piece from Chemerinsky:
“First, what gun regulations will now be permissible?”
“From a practical perspective, this is the key question.”
“Justice Scalia’s majority opinion does a tremendous disservice to lower court judges across the country because it fails to give them any guidance as to the level of scrutiny to be applied.”
“42 states have provisions in their state constitutions protecting an individual’s right to have guns”
“In every one of them, regulations of firearms are allowed so long as they are reasonable.”
“But Justice Scalia’s opinion must be understood as using some undefined form of heightened scrutiny.”
“His failure to specify the standard of review is an open invitation to challenge every gun law.”
“The outcome of this litigation often will turn on the level of scrutiny applied.”
So those notes are about the “practical perspective” and the issue of “the level of scrutiny”—the practical issue is whether “regulations of firearms are allowed so long as they are reasonable” even when there are provisions “protecting an individual’s right to have guns”.
And I took these further notes on the 25 July 2008 piece:
“There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis.”
“Not surprisingly, the conclusions of the Justices reflect their ideology.”
“Justices cannot decide what is a compelling, or an important, or a legitimate government interest except by making value choices.”
“Conservatives long have favored gun rights and Justice Scalia took this position, even though it required him to abandon the conclusions that should have followed from his traditional methods of constitutional interpretation.”
“The case thus powerfully demonstrates that Justice Scalia’s constitutional rulings, despite his professions to the contrary, ultimately are animated by his conservative politics.”
So Chemerinsky says that a justice’s conclusions will “reflect their ideology” and that a justice has to make “value choices”.
I took still further notes on the 25 July 2008 piece:
“In fact, had Justice Scalia been true to his own interpretive philosophy, rather than his conservative politics, he would have had to come to the opposite conclusion and find that the Second Amendment protects a right to possess firearms only for purposes of service in the militia.”
“Justice Scalia repeatedly has emphasized the importance of focusing on the text in interpreting legal documents. Justice Scalia could find an individual right to have guns only by effectively ignoring the first half of the Second Amendment.”
“if there is ambiguity in the text, Justice Scalia has said that it is important to look to its original meaning at the time the provision was adopted. James Madison drafted the Second Amendment, as he did all of the provisions of the Bill of Rights. His initial draft of the Second Amendment included a provision providing an exemption from militia service to those who were conscientious objectors. It provided: ‘The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.’ The inclusion of this clause in the Second Amendment strongly suggests that the provision was about militia service.”
So Chemerinsky says that Scalia’s “own interpretive philosophy” means “focusing on the text” and considering “original meaning at the time the provision was adopted”—according to Chemerinsky, Scalia didn’t do either of these two things in the Heller decision.
Maybe there’s a way to defend the new interpretation of 2A. But it seems like Scalia’s Heller decision fails to marshal enough evidence and argumentation to overturn the traditional interpretation.
The More Important Thing—History
Take a look at the following excerpt from the leaked draft—that Samuel Alito wrote—regarding abortion:
some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
And the following excerpt too:
The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions.
So there’s supposed to be a concern—on the part of right-wing justices—about what’s “deeply rooted in this Nation’s history and tradition”.
But does this same concern—about “history and tradition”—apply when it comes to 2A? There’s a 28 July 2019 piece from Noam Chomsky in which Chomsky comments as follows about Scalia’s Heller decision:
If you read the decision, it’s interesting. There are all kinds of references to obscure 17th century documents. Strikingly, he never mentions once the reasons the founders wanted the people to have guns, which are not obscure.
And everyone should read Chomsky’s fascinating 20 May 2022 piece that discusses Heller:
I took these notes on the 20 May 2022 piece:
“The court has played its role in reviving the ugliest elements of the history we are instructed to suppress.”
“Probably the most egregious decision of the Roberts Court was to dismantle the Voting Rights Act on ridiculous grounds (Shelby), offering the South the means to restore Jim Crow.”
“Citizens United extended the Buckley doctrine that money is speech—very convenient for the very rich particularly—to giving virtually free rein to those sectors in a position to buy elections.”
“Next on the chopping block is Roe v. Wade.”
“The effects will be extreme.”
“A right regarded by most women, and others, as solidly established is to be wiped out.”
“That’s almost unprecedented.”
“Undermining of the right of Black people to vote by the Shelby decision is a partial precedent.”
“Justice Alito’s leaked draft is based primarily on the principle that court decisions should give primacy to what is ‘deeply rooted in this Nation’s history and tradition.’”
“And he is quite right that women’s rights do not satisfy this condition.”
“The founders adopted British common law, which held that a woman is property, owned by her father, ownership transferred to her husband.”
“One early argument for denying the vote to women was that it would be unfair to unmarried men, since a married man would have two votes, his own and his ‘property’s.’”
“It wasn’t until 1975 that the Supreme Court granted full personhood to women, granting them the right to serve on federal juries as ‘peers.’”
“This ultra-reactionary judicial doctrine is, like others, quite flexible.”
“One illustration is Antonin Scalia’s Heller decision, which reversed a century of precedent and established personal gun ownership as Holy Writ.”
“In his very learned opinion, Scalia succeeded in ignoring all of the rich ‘history and tradition’ that lies behind the decree that ‘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.’”
“The history and tradition are hardly a secret, from the founders through the 19th century, though of course they have no relevance to American history since: (1) the Brits are coming; (2) militias are needed to attack, expel and exterminate the Indigenous nations once the British constraint on expansion was removed, arguably the primary reason for the revolution—though later they were displaced by a more efficient killing machine, the U.S. Cavalry; (3) slaves had to be controlled by force, a threat that was becoming severe with slave revolts in the Caribbean and the South; (4) before the constitutional system was firmly established, there was concern that the British model might be imposed (as Alexander Hamilton had suggested) and might lead to a tyranny that would have to be resisted by popular forces.”
“None of this ‘history and tradition’ had any relevance by the 20th century, at least in semi-rational circles.”
“But it was surely there in history and tradition, not just there but a central part of the history that is scheduled for cancellation as the GOP marches downwards.”
“All of this proceeds with the help of the reactionary judiciary that has been constructed carefully by McConnell and allies, with the goal of imposing a barrier to anything like the deviation of Eisenhower for a long time.”
So Chomsky makes a simple and profound and important argument—let me recap:
regarding abortion, Alito’s leaked draft says that women shouldn’t have a right to abortion because court decisions should “give primacy” to what’s “‘deeply rooted in this Nation’s history and tradition’”—women were property until very recently, so obviously you won’t find any basis for women’s rights in “history and tradition”
this “history and tradition” doctrine isn’t a sincerely applied doctrine—it’s hypocritical and inconsistent and malleable
Scalia ignored—in the Heller decision—all of the “history and tradition” around 2A
there were four reasons why the Founding Fathers put 2A in the Constitution and those four reasons are all obsolete today
the first reason was “the Brits are coming”—that’s obsolete now
the second reason was “militias are needed to attack, expel and exterminate the Indigenous nations”—that’s obsolete now
the third reason was “slaves had to be controlled by force”—that’s obsolete now
the fourth reason was the constitutional system took some time to become firmly established and so there was an initial “concern that the British model might be imposed (as Alexander Hamilton had suggested) and might lead to a tyranny that would have to be resisted by popular forces”—that’s obsolete now
this “history and tradition” was central to US history, but none of it was relevant post-1800s
So the “history and tradition” doctrine shouldn’t be applied in a selective and hypocritical and dishonest way—you’re engaged in something fraudulent if you bring in “history and tradition” whenever it supports your conclusion and then disregard “history and tradition” whenever it undermines your conclusion.
And you might ask whether the fourth reason—regarding tyranny—is still relevant today. I asked my friend about this and took notes on their answer:
“There was authentic concern in the early years of the Republic that the executive could become a tyrant. That gradually dissipated as the constitutional system became firmly established.”
“A residue remained: the right to protect slavery from federal ‘tyranny’. The Civil War ended that, formally (other modes of virtual slavery remained, and still do).”
So there’s no reason for 2A to exist if we pay attention to “history and tradition”—that’s the deeper point that people should spotlight, whereas the fights over interpretation are secondary.
It’s very hard to change the US Constitution—the realistic strategy is to reverse Heller, restore the longstanding interpretation of 2A, and make 2A virtually irrelevant again. But people should know all about the reasons behind 2A and why those reasons are obsolete.