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Federalism and the Constitutional Right to Keep and Bear Arms


Author(s): Nelson Lund
Source: Publius, Vol. 33, No. 3, The State of American Federalism, 2002-2003 (Summer, 2003),
pp. 63-81
Published by: Oxford University Press
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Federalismand theConstitutional
Right
to Keep and Bear Arms
Nelson Lund
Mason University
SchoolofLaw
George
Until recently,thefederal courtsagreed that theSecond Amendmentprotectstheinterestofstates in
maintaining theirown militias. In United States v. Emerson, the US. Court ofAppealsfor theFifth
Circuit rejectedthis consensus, and held that the Constitutionprotectsa rightofprivate individuals to
keep and bear arms. The fifthcircuit'sposition is moreplausible than the consensus view, and the
set of
argumentsfor treatingtheSecond Amendmentas a kind offederalismdeviceare weak. A different
federalismissues is raised bytheprospectthat theSupremeCourt mightadopt thefifthcircuit'sposition,
and then take the next step of applying the Second Amendmentto the states throughtheFourteenth
Amendment. Finally, Emerson shows how certain technicallegal doctrinesthatprotectthedignityof

tostrengthen
thefederalgovernment's
thestatescan operate
by
abilitytoundermine
afforded
protections
theSecond Amendment.

The Constitution'sSecond Amendment1has been given substantial


attention-evenveneration-byactivistsand politiciansopposed to the guncontrol regulationsthat manyjurisdictionshave adopted in an effortto
curtailviolent crime. Until recently,academic commentatorshave not
displayeda correspondinginterestin thisconstitutionalprovision.Atleast
one reason forthisneglectis thatthe federalcourtshave neverfoundthat
any stateor federalregulationviolated the Second Amendment. Indeed,
theyhave developed a body of doctrineunder whichall such regulations
are validbecause theSecond Amendmentdeals withthestructural
relations
betweenthestatesand thefederalgovernment,
withoutprotectinganyright
belongingto privatecitizens.
Beginningin the 1980s,a smallband of scholars(mostofwhomwerenot
professional academics) began to question the validityof thisjudicial
consensus. Their writingseventuallyattractedattentionfromthe legal
academy,and there is now a substantialbody of literaturecriticizingthe
assumptionsand conclusionsadopted by the courts. In 2001, the United
States Court of Appeals for the FifthCircuit (whichhas jurisdictionover
Texas,Louisiana,and Mississippi)
joined theseacademiccriticsin repudiating
the analysisunderlyingalmostall of the existingcase law. This decision,
styled UnitedStatesv. Emerson,2
will undoubtedlystiradditionalacademic
AUTHOR'S
NOTE: Thanks toJohn Kincaid and three anonymous referees for comments on a previous
draft, and to the Law and Economics Center at George Mason University School of Law for financial
assistance. I participated in an amicus role in the Emerson litigation.
The Second Amendment provides: "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."
2270 F.3d 203 (5th Cir. 2001), cert.denied, 536 U.S. 907 (2002). The Supreme Court's denial of certiorari,
of course, was not accompanied by any explanation and has no precedential value. For at least two reasons,

? Publius: TheJournal of Federalism33:3 (Summer 2003)

63

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64

Publius/Summer2003

debate, and itsanalysishas itselfalreadybeen expresslyrepudiatedbythe


ninthcircuit.3 Eventually,
the U.S. Supreme Court willprobablyhave to
resolvethe disagreement.
is importantprimarily
Emerson
forwhatit saysabout the meaningof the
Second Amendment.The case,however,
and theSecond Amendmentitself,
also raise some otherinterestingquestionsabout federalism.
THE EMERSON CASE
TimothyJoe Emerson purchased a pistol in 1997. About a year later,
Emerson'swifefiledfordivorceand soughta temporaryrestrainingorder
againsthim. Mrs. Emerson'sapplicationforthe restrainingorder,which
was essentiallya standardizedformroutinelyused in Texas divorcecourts,
stated no factualbasis for the reliefsought. The order itself,whichwas
issued exparte,
contained29 separateprohibitions,mostofwhichsoughtto
ensurethatEmersondid not engage in significant
financialtransactionsor
otherwiseuse thefamilypropertyin a manneradverseto hiswife'sinterests.
The order also prohibitedvarioussortsof interferencewiththe couple's
child, and it forbade Emerson to threaten or injure his wife or to
communicatewithher in vulgaror indecentlanguage.
At a hearinga fewdays later,a Texas divorce-court
judge explored in
considerabledetailthefinancialcircumstancesof the couple, and fixedthe
amount of temporarychild supportto be paid by Emerson. The hearing
also included a briefcolloquyin whichMrs. EmersonstatedthatEmerson
had threatenedto killa "friend"ofhers,butthathe had neverthreatenedto
killher. Althoughthejudge made no findingsthatEmersonhad committed
orwaslikelyto commitanyofthe29 separateactsprohibitedin thetemporary
order,he convertedthatorderto a temporary
restraining
injunction.
Nothingin the storyso faris unusual. It is apparentlyroutineforTexas
courts to issue prophylacticrestrainingorders in divorce cases, without
findingsor even evidence thatthe acts prohibitedin those orderswould
otherwisebe likelyto occur. The storybecame less commonplacewhen the
federalgovernmentindictedEmersonforviolating18 U.S.C. ? 922(g) (8),
whichimposes a totalfirearmsdisabilityon anyperson:
who is subjectto a courtorder that(A) was issued aftera hearing of which such person received
actual notice,and at whichsuch person had an opportunityto
participate;
suchpersonfromharassing,stalking,
or threatening
(B) restrains
denial of the petitionwas unsurprising.First,thefifthcircuit'sdecision did not createa technicalconflict
withany other circuit'sapplication of the federalstatuteat issue in the case. Second, the fifthcircuit's
decision depended in a crucial respecton the court'sinterpretationof Texas statelaw,whichmeans that
thecase would havebeen an awkwardvehicleforSupremeCourtconsiderationoftheproperinterpretation
of the Second Amendment.
312 F3d 1052 (9th Cir. 2003).
3Silveirav. Lockyer,

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The ConstitutionalRightto Keep and Bear Arms

65

an intimatepartnerof such person or child of such intimate


partneror person,or engagingin otherconductthatwouldplace
an intimatepartnerin reasonable fear of bodilyinjuryto the
partneror child; and
(C) (i)includes a findingthatsuch person representsa credible
threatto thephysicalsafetyofsuch intimatepartneror child;or
(ii)by its termsexplicitlyprohibitsthe use, attempteduse, or
threateneduse of physicalforceagainstsuch intimatepartner
or childthatwouldreasonablybe expectedto cause bodilyinjury.
had made no findingthatEmerson
Because theTexasdivorce-courtjudge
representeda threatto thesafetyofhiswifeor child,thefederalgovernment
indictedEmersononlyundersubsection(C) (ii). On itsface,thatprovision
applied to Emerson because the restrainingorder "explicitly"prohibited
violenceagainstMrs.Emerson,even thoughshe had testifiedthatEmerson
had not threatenedher and even thoughthejudge made no findingthat
he posed anydanger to her. Accordingto the prosecutor,the mere factof
an "explicit"prohibitionin a state-courtrestrainingorder is enough to
impose a total firearmsdisabilityon an American citizen. Accordingto
Emerson,thisviolatedhis Second Amendmentrights.
Under the prevailinginterpretationof the Second Amendmentat the
timeEmersonwasprosecuted,thisshouldhavebeen an easycase. Although
the U.S. Supreme Courthas had verylittleto sayabout the meaningof the
Second Amendment,4almostall of the courtsof appeals had agreed thatit
protectsonlya "collectiveright"ofthestatesto maintainorganizedmilitias5
or, at most,a rightof citizensto have armsas partof theirservicein such
organizations."Because Emersonwasa civilianwho kepthispistolforprivate
use, his constitutionalchallenge to the federaldisarmamentstatutewould
of the Second Amendment.As it
necessarilyfailunder thisinterpretation
4The most importantdecision, UnitedStatesv. Miller,307 U.S. 174 (1939), reverseda lower court
decision thathad found the possession of a sawed-offshotgunprotectedfromfederalregulationby the
Second Amendment. The Milleropinion focused on the nature of the weapon involved in the case,
withoutaddressingquestions about the "collective"or "individual"natureof Second Amendmentrights.
The opinion indicatesthatthe Courtbelieved thatthe "obviouspurpose" of the Second Amendmentwas
to assure the continuation and render possible the effectivenessof the militia,and that it must be
interpretedwiththat end in view. Ibid., 178. At the same time,the Court did not even suggestthatit
matteredwhetherthe defendantsin the case were membersof the militiaor not, and the Court seemed
to implythatitdid not matter.The ambiguitiesin the opinion have permittedadvocatesforboth sides of
the collective-right/individual-right
debate to claim thatMillerisconsistentwiththeirposition. For more
detailed discussions of the Millercase, see, for example, L.A. Powe, "Guns, Words,and Constitutional
Interpretation,"William& MaryLaw Review38 (May 1997): 1326-32;Nelson Lund, "The Past and Future
of the Individual'sRightto Arms,"GeorgiaLaw Review13 (Fall 1996): 39-46.
319 U.S. 463 (1943); Hickmanv.
5UnitedStatesv. Tot,131 F.2d 261 (3d Cir. 1942), rev'don other
grounds,
47 F.3d 120, 124 (4th Cir. 1995); UnitedStatesv.
Block,81 F.3d 98, 102 (9th Cir. 1996); Love v. Pepersack,
497 F.2d 548, 550 (4th Cir. 1974); Stevens
Warn,530 F.2d 103, 106 (6th Cir. 1976); UnitedStatesv.Johnson,
v. UnitedStates,440 F.2d 144, 149-50 (6th Cir. 1971).
117 F.3d 1265, 12766Cases v. UnitedStates,131 F.2d 916, 922-23 (1st Cir. 1942); UnitedStatesv. Wright,
77 (11th Cir. 1997); UnitedStatesv. Rybar,103 F.3d 273, 285-86 (3rd Cir. 1996), cert.denied,522 U.S. 807
(1997); UnitedStatesv. Hale, 978 F.2d 1016 (8th Cir. 1992); UnitedStatesv. Oakes,564 F2d 384, 387 (10th
Cir. 1977).

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66

Publius/Summer2003

happened, however,thefifthcircuitwas one ofonlythreecourtsofappeals


that had never decided, one way or the other, whether the Second
Amendmentprotectsan individualrightthatcan be exercisedbycivilians.
The federal trial court took advantage of the absence of binding
precedent to dismiss the indictment, holding that the statute "is
because itallowsa statecourtdivorceproceeding,without
unconstitutional
particularizedfindingsof the threatof futureviolence, to automatically
deprivea citizenof his Second Amendmentrights.. . . [B]y criminalizing
based upon a civilstatecourtorder
protectedSecond Amendmentactivity
with no particularizedfindings,the statuteis over-broadand in direct
violationof an individual'sSecond Amendmentrights."'
In a lengthyopinion, the fifthcircuitreversed. The appellate court
concluded thattheSecond Amendmentdoes protectan individualrightof
Americanciviliansto keep and bear arms,and held thatthe applicationof
the federal statute to Emerson raised serious constitutionalquestions.
Nevertheless,the court interpretedTexas law to forbid the issuance of
restrainingorders like the one to which Emerson was subject without"a
realisticthreatof imminentphysicalinjuryto the protectedparty,""and it
concluded thatfederallaw forbidsa federalcourtfrominquiringwhether
wasactuallymet in a particularcase. The courtalso implied
thisrequirement
orderto issuewithout
quiteclearlythatifa state'slawdid permita restraining
a realisticthreatof lawlessviolence, the Second Amendmentwould be
violatedby a federalstatutethatautomaticallydisarmedsomeone merely
because he was subjectto such an order.
The Emerson
decision is the firstsignificantjudicialrecognitionthatthe
bear armsmayhave a meaningfulrole to playin modern
to
and
right keep
America. The Second Amendmentwas,no one doubts,a responseto AntiFederalistfearsthatthe stateshad ceded a dangerouslyexcessiveamount
of militarypower to the new federal government. The nature of that
response,however,has provedto be a matterof considerablecontroversy.
Much ofthemoderndebate about themeaningoftheSecond Amendment
has dealt withwhetherit protectsthe abilityof the statesto maintaintheir
own militaryorganizationsor a rightbelonging to individualcitizensin
their privatecapacity. The followingbriefdiscussion explains whythe
courtplausiblyinterpretedthe Second Amendmentto protectan
Emerson
fromsome
suffers
individualright,and whythe states'rightinterpretation
seriousdifficulties.9
7UnitedStates v. Emerson, 46 F. Supp. 2d 598, 610-11 (N.D. Tex. 1999).
"United States v. Emerson, 270 F.3d 203, 264 (5th Cir. 2001).
9This article draws from the more detailed discussions of the Second Amendment in Nelson Lund, "A
Primer on the Constitutional Right to Keep and Bear Arms," Policy Paper No. 7, Virginia Institute for
Public Policy (June, 2002); Nelson Lund, "Outsider Views on Guns and the Constitution," Constitutional
Commentary17 (Winter 2000): 701-720; Nelson Lund, "The Ends of Second AmendmentJurisprudence:
Firearms Disabilities and Domestic Violence Restraining Orders," Texas Review of Law and Politics 4 (Fall
1999): 157-191; Nelson Lund, "The Past and Future of the Individual's Right to Arms," 1-76; and Nelson
Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation," Alabama Law Review
39 (Fall 1987): 103-130.

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The ConstitutionalRightto Keep and Bear Arms


THE OPERATIVE CLAUSE OF THE SECOND

67
AMENDMENT

Beforelookingat theprefatory
language of theSecond Amendment,upon
which the states' rightinterpretationrests,we should note that the language of the operativeclause is parallel to thatused in theFirstand Fourth
Amendments:
Congressshallmakeno law . .. abridging... the rightof thepeople
fora redressof
peaceablyto assemble,and to petitiontheGovernment
grievances.
The rightofthepeopletobe securein theirpersons,
houses,papers,and
searchesandseizures,
shallnotbe violated...
effects,
againstunreasonable
All threeamendmentswere framedtogether,and the Firstand Fourth
Amendment rightshave alwaysbeen treated as individual rather than
governmentalrights. It would be odd to use the same referenceto "the
rightof the people" to create a rightbelonging to states,especiallywhen
one notes thatthe TenthAmendmentplainlydistinguishesthe statesfrom
the people:
The powersnotdelegatedto theUnitedStatesbytheConstitution,
nor
totheStatesrespectively,
or to
prohibited
byitto theStates,arereserved
thepeople.'0
It is true that in the original Constitution,"the people" is sometimes
used to include only a subset of the entirecitizenry.The preamble,for
example, statesthatthe Constitutionwas establishedby"the people," but
many citizens were barred from participating in the state ratifying
conventions. Similarly,
ArticleI requiresthatmembersof the U.S. House
of Representativesbe elected by "the people," but we know thatwomen
were not permittedto vote and thatpropertyqualificationswerecommon
at the time. Thus, "the people" referredto in the Second Amendment
could be a subsetof the citizenry.
Nonetheless,the Constitutionnowhere uses the term"the people" to
referto stategovernments.ArticleI, forexample,specifiedthatthe House
ofRepresentatives
wouldbe electedby"thepeople," butthatsenatorswould
be chosen bythelegislatureofeach state. The importanceof thelinguistic
distinction between the people and the states is confirmed by the
SeventeenthAmendment,whichcreateda newruleprovidingthatsenators
would be elected "bythe people" of each state. Similarly,
the membersof
the electoralcollege are appointed byeach statein whateverwaythe state
legislaturedirects,whichmayinvolveelectionbythe people or some other
'?U.S. Const. art. I, ? 8, cl. 8.

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means. The Constitutionnever identifiesthe people with their state


governments.
Interpretingthe Second Amendmentso as to identifythe people with
the stategovernmentswould be surprisingforanotherobviousreason. A
basic principleof Americanpolitical thought-beginninglong beforethe
federalConstitutionwas made, continuingdown to the presentday,and
unmistakably
impliedin theConstitution'spreamble-isthatthepeople are
while
legitimategovernmentsare mere creaturesof the people.
supreme,
To take only one of countless examples, Chief JusticeJohn Marshall
"That the people have
considered the followingpropositionself-evident:
their
future
to
for
an originalright establish,
government,such principles
as, in theiropinion,shall mostconduce to theirown happiness,is thebasis
on which the whole American fabrichas been erected."" Treatingany
governmentas if it were identicalwiththe people would tacitlyclaim a
statusforthe governmentthathas neverbeen publiclyrespectablein the
United States.
THE GRAMMATICAL STRUCTURE
OF THE SECOND AMENDMENT
Before turningto the prefatorylanguage of the Second Amendment,we
should pause to focus on a fewthingsthatthe Second Amendmentdoes
notsay:
does notsaythatitprotectstherightofthe militia
It emphatically
to keep and bear arms.
Nor does the Second Amendmentsaythatthe people's rightto
to establisha well regulatedmilitia,or thata
arms is sufficient
forthe securityof a freestate.
well regulatedmilitiais sufficient
Nor does theSecond Amendmentsaythattherightofthepeople
thatsuch a
to keep and bears armsis protectedonlytotheextent
of
a
or
the
militia
security freestate.
rightfostersa wellregulated
The grammarof the Second Amendmentis often given insufficient
attention.The firsthalfof thesentenceis an ablativeabsolute (or absolute
phrase) thatdoes not modifyor limitany word in the main clause. The
usual functionof absolute phrases is to convey informationabout the
circumstancessurroundingthe statementin the main clause, such as its
cause. For example,a dean mightannounce: "The teacherbeingill,today's
class is cancelled." Even if the teacherwere only fakingillness,the class
would stillbe cancelled. The explanationin the ablativeabsolutedoes not
modifyor qualifythe directivegivenin the main clause.
theprefatory
Thus,althoughwe willneed to askwhatusefulinformation
cannot
Amendment
of
the
Second
the
offers,
simply
language
language
"Marbury v. Madison, 5 U.S. (1 Cranch)

137, 176 (1803).

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The ConstitutionalRightto Keep and Bear Arms

69

be read to mean: "The states shall have the right to maintain a well
regulatedmilitia."
THE PATENT AND COPYRIGHT CLAUSE AND THE
PREAMBLE
CONSTITUTION'S
The Second Amendmentis unique among theelementsoftheBillofRights
in containingan explanationof itspurpose. One provisionof the original
Constitution,however,is similarto the Second Amendmentin thisrespect:
The CongressshallhavePower... To promotetheProgressofScience
and usefulArts,bysecuringforlimitedTimesto Authorsand Inventors
theexclusiveRightto theirrespective
and Discoveries.
Writings
Unlike the Second Amendment,thisconstitutionalprovisiondoes seem
to implythroughits grammaticalstructurethatits statementof purpose
servesa definitelimitingfunction.On itsface,theprovisiongrantsCongress
a powerto pursue a statedgoal and to do so onlybyspecifiedmeans. The
naturalreading of the provisionis thatCongressmaygrantcopyrightsto
authorsand patentsto inventorsonlyin order to promotethe progressof
science and usefularts. From this natural and logical reading,it would
seem to follow that Congress has no power to grant copyrights to
whosewritings
do nothingto promote
pornographersor racisthatemongers,
the progressof science or usefulknowledge. Similarly,it would seem to
followthatCongresshas no powerto grantcopyrights
to Luddites,who are
retard
the
to
of
science
and
the
usefularts."12
activelyseeking
progress
these obviousimplicationsfromthe textof the clause,
Notwithstanding
Congresshas extended copyrightprotectionto all mannerofwritingsthat
obviouslycontributenothing, or less than nothing, to the progress of
knowledge. Yet, the courts have never held that Congress has thereby
exceeded its authority.Even more striking,the Supreme Court recently
held thatCongresshas the powerto extend the termof existingcopyrights
evenifitisvirtually
retroactively,
impossibleforsuchan extensionto promote
the progressof knowledge.'"
Ifthegrammatically
clause
limitinglanguage ofthepatentand copyright
does not in factlimitthe power grantedby thatclause, it would seem to
followafortiori
thattheablativeabsolutein theSecond Amendment-which
does notevenservea limitingfunctiongrammatically-cannot
limitthescope
of the rightspecifiedin the operativeclause.
the Constitution'spreamble saysthatitspurposesinclude the
Similarly,
establishmentof'justice" and promotionof"the generalwelfare."No one
believes thatthisauthorizesthe courtsto strikedown everyunjuststatute
2Leavingaside modern case law,therewould be no necessaryconflictbetween the FirstAmendment
and thisreading of the patent and copyrightclause because the refusalto granta copyrightwould not
preventpornographers,racists,and Luddites fromdisseminatingtheirviews.
123 S. Ct. 769 (2003).
3Eldredv. Ashcroft,

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Publius/Summer2003

or every special interest pork-barrelappropriation. Moreover, state


constitutionsfrom the founding period were litteredwith explanatory
prefaceslike the one in the Second Amendment;yet,theseprefaceswere
not construed to change the meaning of the operativeclauses to which
theywere appended.'4
The conclusion is inescapable: the prefatorylanguage of the Second
Amendment does not implythat the operative clause means anything
different
than itwould mean withoutthe prefatory
explanation.
THE PURPOSE

OF THE SECOND

AMENDMENT

At this point, one mightreasonablyask: If the prefatoryphrase simply


explains the operativeclause, withoutlimitingor qualifyingit,what,then,
does an individualrightto arms have to do witha well regulatedmilitia?
The answerto thisquestion requiressome historicalbackground,and it
requiressome additionalattentionto the textof the originalConstitution.
First,the foundinggenerationhad a deep and widespreadmistrustof
peacetime standingarmies. Manypeople believed,on the basis of English
are prone to
historyand thecolonial experience,thatcentralgovernments
use armiesto oppressthepeople. One wayto reduce thattemptationwould
be to allow the governmentto raise armies (consistingof full-timepaid
troops) onlywhen theyare needed to fightforeignadversaries.For other
purposes,such as respondingto sudden invasionsor similaremergencies,
thegovernmentcould be restrictedto usinga militiaconsistingofordinary
civilianswho receivea bit of unpaid militarytrainingon a part-timebasis.
Such an approach had deep roots in English history,but the original
Constitution
did nottakethisapproach,forreasonswe shallexplore. Before
doing so, we should focuson fivefeaturesof the originalConstitutionthat
are cruciallyimportantin understandingthe Second Amendment.
First,themilitiais not thearmy.The Constitutionhas separateprovisions
foreach, and it neverconfusesor blends the two.15
Second, Congresswas givenalmostplenaryauthorityoverthe armyand
the militiaalike. The onlypowersreservedto the stateswere the rightsto
and to trainthemilitiaaccordingto rulesprescribed
appointmilitiaofficers
byCongress.'6
Law Review73
4See Eugene Volokh, "The Commonplace Second Amendment,"New YorkUniversity
(June 1998): 793-821.
in
and
clauses
of
Article
section
8. Authority
12-14
I,
'5Congressis givenauthorityover the army
navy
ArticleII, section2 makes the president
overthe militiais conferredseparatelyin clauses 15-16.Similarly,
the commander in chief of the armyand navy,and separatelymakes him commander in chief of the
militiain certainlimitedcircumstances.
'6U.S. Const. art. I, ? 8, cls. 12-16,providesCongresswiththe power:
To raise and support Armies,but no Appropriationof Money to that Use shall be for
longer Term than twoYears;
To provideand maintaina Navy;
To make Rules forthe Governmentand Regulationof the land and naval forces;
To provide for calling forththe Militia to execute the Laws of the Union, suppress
Insurrectionsand repel Invasions;
To providefororganizing,arming,and disciplining,the Militia,and forgoverningsuch
Partof themas maybe employedin the Serviceof the United States,reservingto the States

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71

Third,the Constitutionnowheredefinesthe militia. There is abundant


historicalevidencethatthefoundinggenerationsawa fundamental
difference
betweenarmies (usuallycomposed of professionalsoldiers) and the militia
summonedto meetpublicemergencies).
(consistingofcivilianstemporarily
Butthereis also abundantevidencethatthefoundinggenerationwasacutely
awarethatthemilitiacould readilybe convertedintothefunctional
equivalent
of an army.There had been examplesof thisin England,17and we have an
example today in the formof the National Guard, which is now a fully
integratedcomponentof the federalarmedforces.'18
Fourth,the Constitutionimposes no duties whatsoeveron the federal
government,eitherwithrespect to armies or withrespect to the militia.
Congressis not requiredto organizethe militiain anyparticularway,or to
keep itwellregulated,or indeed to do anythingat all to secureitsexistence.
Fifth,theConstitutionexpresslyprohibitsthestatesfromkeepingtroops
withoutthe consentof Congress.'9
Turningback to the Second Amendmentwith these factsin mind, it
becomes apparent why the Second Amendment does not appear to
constitutionalizea rightof the statesto keep up militaryorganizationslike
the National Guard,or even a traditionalmilitia. That theoryimpliesthat
the Second Amendment silently repealed or amended two separate
provisionsof the Constitution:the clause givingthe federal government
virtually
completeauthorityoverthe militia,and the clause forbiddingthe
statesto keep troopswithoutthe consent of Congress. When the Bill of
and
Rightswas adopted, no one suggestedthatitwould have theseeffects,
no one openly claims such a thingtoday. On the contrary,the Supreme
Courthas consistently
held thatCongresshas plenaryauthorityto preempt
or
all
state
militia
any
regulations, and even to cause the complete
of
the
militia.20
In practice,thathas effectively
been done
disappearance
because thestatemilitiashave nowbeen convertedto integralcomponents
of the federal armed forcesthroughthe National Guard reservesystem.
Under the states' righttheoryof the Second Amendment,the National
Guardsystem
wouldseem to be unconstitutional,
whicheveryone(including
the Supreme Court"2)agrees is not the case.
The fiveelementsof the originalConstitutiondescribedabove also help
to explaintherelationshipbetweenitsintroductory
phraseand itsoperative
clause. The relationshipturnsout to be deceptivelysimple.
respectively,the Appointmentof the Officers,and the Authorityof trainingthe Militia
according to the discipline prescribedbyCongress.
'7See, forexample,JoyceLee Malcolm, To Keepand BearArms: TheOriginsofan Anglo-American
Right
(Cambridge,Mass.: Harvard UniversityPress, 1994), pp. 35-38.
496 U.S. 334 (1990).
'"See, forexample, Perpichv. Department
ofDefense,
'9U.S. Const., art. I, ? 10, cl. 3: "No State shall, withoutthe Consent of Congress... keep Troops, or
of
War
in
time
of
Peace
....
Ships
20See,forexample, Houstonv. Moore,18 U.S. (5 Wheat.) 1 (1820); Selective
DraftCases,245 U.S. 366,
382-383 (1918). For a useful discussion of the cases, see J. Norman Heath, "Exposing the Second
Amendment:Federal Preemption of State Militia Legislation," University
ofDetroitMercyLaw Review70
(Fall 2001): 39-73.
v. Department
496 U.S. 334 (1990).
2'Perpich
ofDefense,

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The mostobviouswayin whicha militiawould become "wellregulated"


is through becoming well trained or well disciplined as a military
organization.The term"wellregulated,"however,is broaderthantheterms
"welltrained"and "welldisciplined."Furthermore,
theSecond Amendment
added absolutelynothingto Congress'virtually
plenaryArticleI authority
to providefortrainingand discipliningthe militia. On the contrary,the
Second Amendmenteithersubtractedor reservedsome regulatorypower
fromCongress. Whateverquestions there maybe about the meaning of
the Second Amendment,there can be no doubt about the fact that it
commandssome kind of governmentalinaction,not some kindof action.
How could thatcontributetoproducinga wellregulatedmilitia?The answer
requiresus to abandon the habitof assumingthatsomethingcan become
"well regulated"only throughmore regulation. In fact,the term"well
regulated"does not implyheavyregulationor more regulation. What is
more relevantis thatsomethingcan onlybe "wellregulated"when it is not
overlyregulatedor inappropriatelyregulated.
Recall that the original Constitutiongave Congress almost unlimited
authorityto regulate the militia. As the operativeclause of the Second
Amendmentmakes clear,itspurpose is simplyto forbidone specifickind
of inappropriateregulation(among the infinitepossible regulations)that
Congressmightbe temptedto enact under itssweepingauthorityto make
all laws "necessaryand proper" for executingthe powersgrantedby the
Constitution.22The proscribedregulationsare those thatwould disarm
the citizenryfromamong whichanygenuine militiamustbe constituted.
Congressis permittedto do manythingsto ruinthe militia,and to omit
manythingsthatare necessaryfora well regulatedmilitia. Congressmay
pervertthemilitiaintothefunctionalequivalentofan army,or evendeprive
itcompletelyofanymeaningfulexistence. Manyof thosethingshave been
done, and many members of the founding generation would have
disapprovedstrongly.But the original Constitutionallowed it, and the
withcongressionallatitude
Second Amendmentdid notpurportto interfere
to regulatethe militia. What the Second Amendmentdoes is to expressly
forbida particular,and to theframinggenerationa particularly
worrisome,
extensionof Congress' authorityto make laws"necessaryand proper"for
exercisingits controlover the militia. Whateverthe federalgovernment
does or fails to do about the militia,the Second Amendmentforbidsit
fromdisarmingcitizensunder the pretenseof regulatingthe militia.
THE CONSTITUTIONAL

CONVENTION

At thispoint, it mightbe objected thatsimplyforbiddingone particular


inappropriateregulationmakes a rathertrivialcontributionto fosteringa
22U.S. Const., art. I, ? 8, cl. 18: "The Congressshall have power... To make all Laws whichshall be
necessaryand proper for carryinginto Execution the foregoingPowers,and all other Powersvested by
thisConstitutionin the Governmentof the United States,or in any Departmentor Officerthereof."

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The ConstitutionalRightto Keep and Bear Arms

73

well regulatedmilitia. There is some truthin thisclaim,but the objection


itselfis not particularly
powerful.
The Second Amendmentwas a responseto a more specificand difficult
politicalproblemthanmostotherprovisionsin the Bill ofRights.Because
of historical memories going back to the period before the English
Revolutionof 1689, and because of actual memoriesof abuses by British
troopsin the colonies,the foundinggenerationwas markedbyan aversion
to peacetime standingarmies. The militiasystemwas treasuredby many
because theexistenceofa wellregulatedmilitia,composed
people primarily
ofciviliansreadilyavailableforemergencymilitary
service,tendedto deprive
the governmentof an excuse formaintainingstandingarmies.
Not everyoneshared thissentiment.AlexanderHamilton,forexample,
because itviolatedthebasic
thoughtthemilitiasystemwasfoolish,primarily
economic principleof the divisionof labor.23 More important,however,
even those who treasuredthe militiarecognized thatit was fragile. The
reason it was fragilewas the same reason thatmade Hamilton thinkitwas
foolish:citizenswould alwaysresistundergoingunpaid militarytraining,
and governmentswould always be stronglytempted to acquire more
professional(and thereforemore efficientand tractable)forces.
This led to a dilemma at the ConstitutionalConvention. Experience
War had demonstratedconvincinglythatmilitia
duringthe Revolutionary
forces could not be relied on for national defense. The decision was
thereforemade to givethefederalgovernmentalmostunfetteredauthority
to establisharmies,includingpeacetime standingarmies. That decision,
however,created a threatto liberty,especiallyin lightof the factthatthe
Conventionalso decided to forbidthe statesto maintaintheirown armies
withoutthe consentof Congress.
One solution mighthave been to require Congress to establish and
maintaina well disciplinedmilitia. This would have deprivedthe federal
governmentof the excuse that it needed standingarmies,and it would
have establisheda meaningfulcounterweight
to anyrogue armythatmight
be created by the federal government. That possibilitywas never taken
seriously,and for good reason. How could a constitutiondefine a well
regulatedor welldisciplinedmilitiawiththe requisiteprecisionand detail?
It would almostcertainlyhave been impossible.24
Anothersolutionmighthave been to forbidCongressto interferewith
statecontroloverthemilitia.Thiswasalso unworkable.Fragmentedcontrol
overthe militiawould inevitablyhave resultedin an absence of uniformity
in training,equipment,and command,and no reallyeffective
force
fighting
could have been createdunder these conditions.
23SeeAlexander Hamilton, "FederalistNo. 29," TheFederalist
Papers,ed. Clinton Rossiter(New York:
Mentor,1961), pp. 182-186.
24Congresscould easilyevade any general injunctionsrequiringthe maintenance of the militia,like
the one in the Articlesof Confederation (art. VI, F4), by creating a "select militia"resemblingthe
National Guard, whichwould operate as the functionalequivalent of an army.

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In effect,the choice was between a militiaunder state control,which


and a militiaunder federal
would be too weak to be militarilyeffective,
control, whose militaryeffectivenesscould be put to bad use. This
conundrumcould not be solved,and the Conventiondid not purportto
solveit. The Second Amendmentdoes notsolveiteither.WhattheSecond
Amendmentdoes is to ameliorate the problem to a verylimitedextent.
Faced witha choice betweena standingarmyand a well regulatedmilitia,
the federalgovernmentmightwell preferto establisha standingarmyand
allow the militiato fall into desuetude. However,faced withthe choice
between a well trainedmilitiaand an armed but undisciplinedcitizenry,
thegovernmentmightpreferto keep themilitiain good order. In thisway,
and in thiswayalone, theSecond Amendmentcould contributeto fostering
a well regulatedmilitia.
This interpretationof the Second Amendmentis consistentwith the
historicalevidence. Consider,forexample,just one illustrationfromthe
ratificationdebates about the original Constitution. A number of AntiFederalistsargued that federal control over the militiawould take away
fromthestatestheirprincipalmeans ofdefenseagainstfederaloppression
and usurpation,and thatEuropean historydemonstratedthe seriousness
of this danger. James Madison responded that such fears of federal
oppressionwere overblown,in part because the new federalgovernment
fromEuropean governments.Even so, he then
was structureddifferently
pointed out anotherimportantdifferencebetweenAmericaand Europe.
be almostimpossible
The Americanpeople werearmedand wouldtherefore
to subdue throughmilitaryforce,even if one assumed that the federal
governmentwould tryto use itsarmiesto do so:
ofbeingarmed,whichtheAmericans
Besidestheadvantage
possessover
ofsubordinate
othernation,theexistence
thepeopleofalmostevery
govtowhichthepeopleareattachedandbywhichthemilitiaofficernments,
of ambition,
ers are appointed,formsa barrieragainsttheenterprises
ofanyform
thananywhicha simplegovernment
moreinsurmountable
in theseveral
establishments
themilitary
can admitof. Notwithstanding
will
ofEurope,whichare carriedas faras thepublicresources
kingdoms
are afraidto trustthepeoplewitharms.Anditis
bear,thegovernments
notcertainthatwiththisaid alone theywouldnotbe able to shakeoff
theiryokes.25
were
Implicitin the debate betweentheFederalistsand Anti-Federalists
thattheproposed new Constitutiongave the
twosharedassumptions:first,
overthearmyand themilitia;
almosttotallegalauthority
federalgovernment
and, second, thatthe federalgovernmentshould not have anyauthorityat
all to disarmthe citizenry.
Madison, "Federalist No. 46," The Federalist Papers, ed. Clinton Rossiter (New York: Mentor,
2lJames
1961),
p. 299.

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The disagreementwas onlyover the narrowerquestion of how effective


armedcivilianscould be in protectingliberty.Anti-Federalists
undoubtedly
and hence the Second Amendmentitself,as
regardedthe armed citizenry,
a rathertrivialsafeguardagainstfederaloppression. They maywell have
recognized thatit had some value, forthe mere existenceof armsamong
thepopulace wouldraisethecostsand risksto thegovernment
ofoppressing
thepeople.'26Atthesame time,theycould easilyand plausiblyhavebelieved
thattherewas no realisticprospect,even in the eighteenthcentury,
thatan
and
of
untrained
citizens
in
could
battle
unorganized
body
prevail
against
a determinedfederalgovernmentdeployinga genuine army.
The veryinadequacy (from an Anti-Federalistpoint of view) of the
protectionthatan armed citizenrycould offeragainstfederaloppression,
however, also rendered the Second Amendment completely
noncontroversial.It is true thatit could not satisfy
Anti-Federalist
desires
forconstitutionalprovisionsaimed at preservingthemilitary
of
superiority
the statesover the federalgovernment.Attemptingto satisfythatdesire
wouldhavebeen hugelycontroversial,
and itwouldhaveentailedamending
the originalConstitution.No one suggestedthatthe Second Amendment
could have anysuch effect,but neitherdid anyonesuggestthatthefederal
governmentneeded or rightfully
possessed the powerto disarmAmerican
citizens. Not a single person ever so much as hinted that the Second
Amendment created or protected any sort of rightbelonging to state
governments."27
As a politicalgestureto theAnti-Federalists,
a gesturehighlightedbythe
Second Amendment'sprefatory
language,expressrecognitionof the right
to armswas somethingofa sop. The provisionwas easilyaccepted,though,
because all sides agreed thatthe federalgovernmentshould not have the
powerto infringethe rightof the people to keep and bear arms,anymore
thanitshould have thepowerto abridgethefreedomofspeech or prohibit
the freeexercise of religion. Like those freedoms,the rightof individual
citizensto keep and bear armswas one that no one thoughtthe federal
governmentwould have a legitimatereason to infringe.
FEDERALISM COMPLICATIONS:
THE FOURTEENTH AMENDMENT
Assuming,as the fifthcircuitconcluded, that the Second Amendment
thatconclusion
protectsa rightofindividualcitizensto keep and bear arms,28
26SeeLund, "The Second Amendment,PoliticalLiberty,and the Rightto Self-Preservation,"
114-116;
Lund, "The Past and Future of the Individual'sRightto Arms,"56-58.
27See,for example, Stephen P. Halbrook, ThatEveryMan Be Armed: TheEvolutionofa Constitutional
Right(Albuquerque: Universityof New Mexico Press,1984), p. 83.
28Forthe mostpart,judicialand academic defensesofthestates'rightor collectiverightinterpretation
of the Second Amendmentdo not respond directlyto the textualand historicalargumentssupporting
the individual-right
interpretation.The strongestargumentsagainstjudicial adoption of the individualrightinterpretationessentiallytake the position that the purpose foremostin the minds of those who
adopted thisconstitutionalprovision-creatinga barrierto federal tyranny-canno longer be served by

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and difficult
leavesopen a huge numberofinteresting
questionsabout the
exactscope oftheright.No one wouldsuggestforexample,thateveryoneincludingfelons,children,and the insane-has a rightto possess anykind
ofweapon,up to and includingnucleardevicesand guidedmissiles.Thanks
to technological progress, the line-drawingproblems that courts will
necessarilyencountertodayare much more severe than theywould have
been in thelate eighteenthcenturywhensoldiersand civilianswerearmed
withessentiallyidenticalweapons.29Trustingthe generalpopulationwith
mattertodaythanit was then.
standardmilitary
weapons is a fardifferent
The line-drawingproblems that courts will face if they accept the
circuit,however,are not
interpretation
adopted bythefifth
individual-right
result
of
in
the
advances
technological
military
weaponry.Rather,
primarily
theyare the resultof legal developmentsthathave occurredsince the Bill
of Rightswas adopted in 1791. The Second Amendment,like the other
guaranteesof individuallibertyin the Bill of Rights,at firstacted onlyas a
restrictionon the federal government."0There was littleneed for the
between
framersto be concernedabout thedetailsoftheinevitabletradeoffs
individualfreedomand publicsafetybecause theConstitutionleftthestates
freeto balance those competinggoals in whateverwaystheythoughtfit.
Everystatewas leftfreebythefederalBill ofRightsto establishan official
religion,to require governmentlicensesin order to publish a newspaper,
to abolish the rightof trialbyjury,to take privatepropertywithoutjust
or propertywithout
compensation,and to deprivecitizensof life,liberty,
thestateswereleftfreeto regulatetheprivate
due processoflaw. Similarly,
possessionofweapons in whateverwayseemed appropriateto themselves.
The framerscould, therefore,have reasonablyexpected that new issues,
likethosearisingfromtechnologicaldevelopmentsin weaponry,could and
would be addressedbythe stategovernmentsas theyarose. So long as the
stateswereleftwiththeiralmostunbounded regulatorypowers,moreover,
therewould be littledanger to public order arisingfromstraightforward
interpretations of the Constitution's effortsto disable the national
government.If somethingreallyneeded to be done to preventdisorders
guaranteeingto the people a rightto keep and bear armsbecause the militiatraditionthatthe founders
presupposed has been thoroughlyundermined. For a particularlysophisticatedand elaborate versionof
and ConstitutionalChange,"
"The Second Amendment:Structure,History,
thisargument,see DavidYassky,
MichiganLaw Review99 (December 2000): 588-668. Mypositionis thatconstitutionalprovisionsthatcan
should
the
formalamendmentprocess
be repealed onlythrough
no longer servetheiroriginalpurposes
set out in ArticleV, and thatthe purpose of the Second Amendmentwas in any eventbroad enough to
encompasstheaim ofguaranteeingto civiliansthemeans ofprotectingthemselvesfromnon-governmental
oppression (such as criminalviolence) fromwhich the governmentfails to protectthem. For further
detail,see Lund, "The Past and Futureof the Individual'sRightto Arms,"59-67.
"The term"arms"in the Second Amendmentmayhave been meant to referonly to those weapons
thatcan be deployed byan unassistedindividual. See Stephen P. Halbrook, "Whatthe FramersIntended:
A LinguisticAnalysisof the Rightto 'Bear Arms',"Law & Contemporary
Problems
49 (Winter1986): 159lethalweapons (such as portable
160. Today,in contrastto the eighteenthcentury,some extraordinarily
devices
and
antiaircraft
fit
this
nuclear
missiles)
description.
"The Supreme Court accepted thisunderstandingof the Bill of Rightsat an earlydate. See Barronv.
32 U.S. (7 Pet.) 243 (1833).
MayorofBaltimore,

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and iftheBillofRightsforbadeWashington
arisingfroman excessofliberty,
to do it,the statescould take care of the problem.31
has nowbeen altereddrastically.
That stateofaffairs
Duringthetwentieth
century,the Supreme Court began invoking"substantivedue process" to
applyselectedprovisionsoftheBillofRightsagainstthestategovernments.32
Concomitantlywiththat development,the Court began deciding a wide
range of questions thathad not arisen earlier,and thatmightneverhave
arisenbutforthisprocessofFourteenthAmendment"incorporation."Even
to the federal government
afterthe enormous transferof responsibility
beginning in the 1930s, it is still the states that engage in most of the
regulatoryactions thattend to generatehard questionsunder the Bill of
Rights.The effecthas been profound.When theSupremeCourtinterprets
a provisionoftheBillofRightsin a waythatleads to a dangerouscurtailment
forthe
ofgovernmentpower,thereis no longera safetyvalvein thesystem,
Court's decision disables the states as well as the federal government.
assumed
and almostnecessarily,
Consequently,the Court has increasingly,
the essentiallylegislativefunctionof balancing the competingpolicygoals
ofpublic safetyand individualliberty.Because itsdecisionsabout thelimits
of governmentpowerapplyto thefederaland stategovernmentsalike,the
Court now engages in an endless process of adjustingand readjustingthe
permittedbounds of libertyin a varietyof sensitivecontexts.
BeforetheCourtfacesthenecessityofundertakingthisbalancingprocess
in thearea ofgun control,itwillhaveto decide thattheSecond Amendment
does applyto thestates.In theyearssince theincorporationprocessbegan,
the Supreme Court has refused,withoutexplanation,to address the issue
of Second Amendment incorporation.33 In this respect, the Second
Amendmentis unique."
31Asa matterof constitutionaldesign,a case can be made in favorof restoringthisstateof affairs,not
onlywithrespectto the rightto armsbut also withrespectto the other individualimmunitiesin the Bill
of Rights.See Nelson Lund, "Federalismand Civil Liberties,"University
ofKansas Law Review45 (July,
1997): 1045-1073.
32Anextensiveacademic debate has arisenabout the originalmeaningof theFourteenthAmendment
and whetherit was meant to make the restrictionsin the Bill of Rightsapplicable to the states. The
seriousargumentsin favoroftreatingsome or all oftheserightsas "incorporated"all involvetheprivileges
or immunitiesclause, not the due process clause. The Supreme Court, however,has relied entirelyon
substantivedue process,and has rejectedincorporationargumentsbased on the privilegesor immunities
clause.
33TheCourt has declined at least twoopportunitiesto address the issue. See Quiliciv. MortonGrove,
695 F.2d 261 (7th Cir. 1982), cert.denied,464 U.S. 863 (1983); Burtonv. Sills,53 N.J.86, 248 A.2d 521
394 U.S. 812 (1969).
(1967), appealdismissed,
34Beginningin the late nineteenthcentury,the Court has incorporatedall the provisionsof the first
eight amendments,withthe followingexceptions. The Court has expresslyrefusedto incorporatethe
SeventhAmendmentand the grandjury indictmentprovisionof the FifthAmendment. See Minneapolis
241 U.S. 211 (1916) (SeventhAmendmentdoes not apply to the states);
& St. Louis R.R. Co. v. Bombolis,
345 F. Supp. 1025 (E.D. La. 1972) (same), aff'd,409 U.S. 943 (1972); Hurtadov.
Melanconv. McKeithen,
110 U.S. 516 (1884) (FifthAmendmentindictmentprovisionnot applicable to states);Alexander
California,
v. Oliver,510 U.S. 266, 272 (1994)
v. Louisiana, 405 U.S. 625, 633 (1972) (endorsing Hurtado);Albright
(recallingHurtado'sholdingwithapparentapproval). The Court has assumed,withoutexpresslyholding,
thattheexcessivebail clause of the EighthAmendmentapplies to the states. Schilbv. Kuebel,404 U.S. 357,
365 (1971). The Court has not been asked to consider a case involvingthe Third Amendment. That
leaves onlythe Second Amendment.

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There are powerfullegal argumentsin favorofincorporatingtheSecond


Amendment.35 One must note, however,that the Court's important
which
incorporationprecedentshave seldom relied on legal arguments,36
makesanypredictionabout theSecond Amendmenthazardous. Assuming,
of
however,thatthe Courtboth accepts the individual-right
interpretation
the Second Amendment,and decides to make the provisionapplicable to
the states,it will open an importantarea of state regulatoryauthorityto
federaljudicial supervision. In drawinglines between appropriate and
on civilianaccess toweapons,thecourtswillfind
inappropriaterestrictions
littledirectguidance in the thinkingof thosewho framedand adopted the
Second Amendment.AswiththeFirstAmendment,thecourtswillbe largely
on theirown.
Nor is thereany reason to thinkthatthe Supreme Court will look for
guidance in general principlesof federalism,or in the recent cases that
have evinceda renewedjudicial interestin thoseprinciples. It is truethat
the Courthas latelybecome more respectfulof thedignityand importance
of thestategovernments.The Courthas,forexample,begun to recognize
thatcongressionalpowerunder the commerceclause and the Fourteenth
Amendmentcannot be unlimited."7The Court has also articulatedsome
limits,based on theTenthAmendmentor generalprinciplesoffederalism,
on congressionalpowerto compel stategovernmentsto implementfederal
the Court has breathednew lifeinto
regulatoryprograms."38
Additionally,
thusinsulatingstategovernments
old conceptsofsovereignimmunity,
from
certainkinds of lawsuits.39None of these developments,however,has in
any way undermined the doctrinal foundation on which Fourteenth
Amendment incorporation rests, or signaled in the slightestway any
relaxationof the protectionsaffordedbythe individualimmunitiesin the
Bill of Rights.
On the contrary,the Court has recentlytaken a number of steps that
suggesta strongcommitmentto maintaining,and even expanding, the
protection of these individual rightsfrom infringementby the states.
Consider,forexample, the famous 1966 decision in Mirandav. Arizona.40
the difficulty
of derivingthe Mirandadecision fromthe
Notwithstanding
the fact that the Supreme Court had
Constitution,and notwithstanding
35Fortwosomewhatdifferent
approaches, see Lund, "The Past and Futureof the Individual'sRightto
and theRighttoBearArms,1866theFourteenth
Arms,"46-55; Stephen P Halbrook, Freedmen,
Amendment,
1876 (Westport,CT: Praeger, 1998), pp. 183-196.
36See,forexample, Paul M. Bator,"Some Thoughts on Applied Federalism,"HarvardJournalofLaw
450 U.S. 288, 308-309 (1981) (Rehnquist,J.,
and PublicPolicy6 (Special Issue1982): 58; Carterv.Kentucky,
dissenting).
529 U.S. 598 (2000); UnitedStatesv. Lopez,514 U.S. 549
"7See,forexample, UnitedStatesv. Morrsion,
(1995); CityofBoernev. Flores,521 U.S. 507 (1997).
"3See,forexample, Printzv. UnitedStates,521 U.S. 898 (1997); New Yorkv. UnitedStates,505 U.S. 144
(1992).
for example, FederalMaritimeComm'nv. SouthCarolinaStatePortsAuth.,535 U.S. 743 (2002);
39"See,
Aldenv. Maine,527 U.S. 706 (1999); SeminoleTribeofFloridav. Florida,517 U.S. 44 (1996).
40384 U.S. 436 (1966) (holding thatcertainwarningsmustbe givenbeforea suspect'sstatementmade
duringcustodial interrogationmaybe admittedin evidence).

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repeatedlyconcluded thatthe case articulateda prophylacticrule thatwas


notcompelledbytheConstitution,41
a strongmajorityofthe Courtrecently
the decision,whichit characterizedas a "constitutionalrule."42
reaffirmed
In anotherexample,afterdecades ofcases restingon a strongpresumption
that almost any government regulation of commercial activity is
valid, the Court has recentlybegun to look less favorably
constitutionally
on stateregulatoryactions thatmayoperate so as to take privateproperty
forpublic use withoutjust compensation. In one recent case, the Court
said: "We see no reason whythe TakingsClause of the FifthAmendment,
as much a part of the Bill of Rightsas the FirstAmendmentor Fourth
Amendment,should be relegatedto the statusof a poor relationin these
Thus,iftheCourtprovesunwillingto assume
comparablecircumstances."43
forsupervisingthe states' experimentswithgun control,it
responsibility
willnot be because of anytensionbetweenitsemergingnewjurisprudence
offederalismand itstraditionsofprotectingindividualconstitutional
rights
frominfringement
bythe stategovernments.44
FEDERAL COURTS AND STATE LAW
is notableprimarily
because thefifth
circuitadopted theindividualEmerson
the
Amendment.
The fifthcircuit
of
Second
right interpretation
nonetheless rejected the trialcourt's straightforward
application of that
under
which
the
federal
statute
violated
the
Constitution
because
principle,
ittookEmerson'sSecond Amendmentrightsawaywithoutanyparticularized
findingsthathe posed a threatof futureviolence. The appellate court's
reasons for reversing the trial court introduce another federalism
complication.
Invokingan "almostuniversalrule of Americanlaw,"45the fifthcircuit
concluded thatCongressintendeditsstatuteto applyonlyto prohibitions
bystatecourtsthatare uncontestedbythepartyagainstwhomtheyoperate,
or that are supported by evidence fromwhich the court concludes that
thereis a real threator danger of injuryto the protectedparty.The court
also concluded thatTexas law does not permitrestrainingordersto issue
unless theymeet thisrequirement.
This interpretation
of Texas law was less than obvious. For mostorders
outsidethecontextofdomesticrelations,Texas lawdid indeed imposesuch
417 U.S. 433 (1974); Oregonv. Hass, 420 U.S. 714 (1975); New
41See,forexample, Michiganv. Tucker,
Yorkv. Quarles,467 U.S. 649 (1984); Oregonv. Elstad,470 U.S. 298 (1985).
v. UnitedStates,530 U.S. 428 (2000). ChiefJusticeWilliamH. Rehnquistwrotethe Court's
42Dickerson
opinion in thiscase, whichwas decided bya vote of 7-2.
43Dolanv. CityofTigard,512 U.S. 374, 392 (1994). ChiefJusticeRehnquistwrotethe Court's opinion
in thiscase, whichwas decided bya vote of 5-4.
thefactthatmanystateconstitutions
containprovisionsprotectingthe rightto armsshould
44Similarly,
not affectthe Supreme Court's treatmentof the Second Amendmentor of the incorporationissue. Many
state constitutionsalso contain provisionsanalogous to other guarantees in the Bill of Rights,and the
Courthas not consideredthisa reason eitherto narrowor to broaden itsowninterpretation
or application
of those guarantees.
Statesv. Emerson,
270 F.3d 203, 262 (5th Cir. 2001).
45United

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a requirement. The special statuteapplicable in divorce cases included


manyof the other ordinaryrequirementsforrestrainingorders to issue,
but it omittedthe requirementthatthe courtfinda real threatof danger
or injury.Notingthatthe predecessorstatuteto the statuteon whichthe
divorcecourtreliedin thiscase had been construedto requirea showingof
the fifthcircuitread a similarrequirementinto the
"reasonablenecessity,"
newerstatute.
ofTexas law mighthave had
This somewhatquestionableinterpretation
littlesignificancein thiscase except forthe factthatthe recordcontained
no evidencethatEmersonhad everthreatenedhiswife,eitherexpresslyor
by implication. Relyingon Supreme Court and fifthcircuitprecedents
that addressed somewhatdifferentissues, the Emersoncourt held that a
federalcourtmaynot inquireintothelegalityof theunderlyingstatecourt
invalid"as to have"onlya frivolous
orderunlesstheorderis so "transparently
pretenseto validity."46
ByconstruingTexas law in thewaymostfavorableto Emerson'sfederal
judge
rights,but then refusingto inquirewhetherthe Texas divorce-court
circuitappeared in a formal
had followedthelawas thusconstrued,thefifth
sense to be highlyrespectfulof the state'sindependentdignity.The real
effect,however,is primarilyto make itveryeasyforstatecourtsto deprive
actionsof theirSecond Amendmentrights,
partiesin routinedivorce-court
perhaps quite inadvertently.This could happen, for example, if a state
than did the
court interpretedthe requirementsof Texas law differently
fifthcircuit,or ifa statecourtwas unawareof the collateralconsequences
its order would have under the federalstatute,or ifa partyin Emerson's
positiondid not realize thathe needed to object to a standardprovisionin
a restrainingorder lest he lose his Second Amendmentrights. In effect,
the fifthcircuittold those who want to retain theirSecond Amendment
rightsthattheyshouldnotacquiesce in theissuanceofstatecourtrestraining
ordersthatimplicitly
unsupportedassumptionsabout their
embodyfactually
proclivityto violence. This result derives fromthe peculiar interaction
betweenstatecourtdomestic-relations
proceedingsand thefederalstatute
thatattachescollateralconsequences to ordersissued in such proceedings.
It is thusanotherartifactof the Americanfederalstructure,and one that
the Constitution'sframersalmostcertainlydid not foresee.
CONCLUSION
willstimulateand enrichthedebateabout theoriginal
Statesv.Emerson
United
meaningoftheSecond Amendment,and itmaybe an importantsteptoward
the Supreme Court's eventuallydeciding between the "individualright"
and "states' right"interpretationsof the amendment. The interesting
questions about federalismraised by these competing interpretations,
4"Ibid., 263-264.

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The ConstitutionalRightto Keep and Bear Arms

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however,are onlythe beginningof the federalismquestions generatedby


the Constitution'sguarantee of the people's rightto keep and bear arms.
Perhaps the most importantof these questions is whetherthe Second
Amendmentwillbe applied to restrictstatediscretionin the area of gun
control. If that happens, federal reduction of the states' authorityto
experimentwiththe appropriatebalance betweenindividualfreedomand
concerns withpublic order-whichhas become ingrainedin our law and
culturewithrespectto so manyother civilliberties-maybegin to bite in
one of the last remainingareas of stateautonomy.

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