Reply #32: Law scholars don't agree with you..

[X_Digger]

Published in the NYU law review:
http://www.law.ucla.edu/volokh/common.htm

Footnote notations removed, see link above
"The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms." This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions -- perhaps to the point of reading it as having virtually no effect on government action.

My modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island's 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .

Compare this to the Second Amendment's

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 1784 New Hampshire Constitution says

In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

I list dozens more such provisions in the Appendix.

These provisions, I believe, shed some light on the interpretation of the Second Amendment:

1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause.
4. They point to how the two clauses might be read together, without disregarding either.

The provisions also suggest two things about interpretation more generally. First, they remind us that the U.S. Constitution is just one of the at least fifty-one American constitutions in force today, and one of the dozens of constitutions that existed during the Framing era. The legal academy's understandable focus on federal matters can blind us to some important details.

Second, these provisions help show the value of testing interpretive proposals against a politically mixed range of texts. On a topic as incendiary as gun control, it's obviously tempting for people to reach an interpretation based largely on their policy desires. If we want to be honest interpreters, a broad set of test cases for our interpretive method is a good tool for checking our political biases.