Download The Implied Repeal of the Second Amendment by the Fourteenth

The Implied Repeal of the Second
Amendment by the Fourteenth: An
Exercise in Intratextual Interpretation
Jim Chen
University of Minnesota Law School
Gun Control: Old Problems, New Paradigms
Stanford Criminal Justice Center
September 17, 2005
Intratextualism
• The constitutional equivalent of statutory
interpretation’s “whole act” rule
• As venerable as Marbury and McCulloch
• Akhil Amar’s signature technique. See, e.g.,
Intratextualism, 112 Harv. L. Rev. 747 (1999)
– Jury service as a right based on the franchiseexpanding amendments (15, 19, 24, 26)?
– Freedom of speech is informed by the speech or
debate clause of art. I, § 6?
• Cute, clever … and often absurd
The Second Amendment
• “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.”
• Cf. U.S. Const. amend. III (“No Soldier shall, in
time of peace be quartered in any house,
without the consent of the Owner, nor in time of
war, but in a manner to be prescribed by law.”)
• The interpretive principle of meaningful variation
(“Every word is precious; every word is great”)
demands that “Militia” and “Soldier” – and
“people” – bear distinct meanings
Congress’s Powers over “Land and
Naval Forces,” a.k.a. “Soldiers”
• U.S. Const. art. I, § 8, cl. 12-14
– To raise and support Armies, but no Appropriation of
Money to that Use shall be for a longer Term than two
Years;
– To provide and maintain a Navy;
– To make Rules for the Government and Regulation of
the land and naval Forces ….
• The two-year limit on land but not naval forces
reinforces what we understand to have been the
Framers’ fear and distrust of standing armies
Congress’s Powers over the
“Militia”
• U.S. Const. art. I, § 8, cl. 15-16
– To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel
Invasions;
– To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be
employed in the Service of the United States,
reserving to the States respectively, the Appointment
of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress ….
• These references to the “Militia” are connected
to the second amendment. See United States v.
Miller, 307 U.S. 174, 178 (1939).
A potentially unified armed force?
• The President heads the Army, the Navy, and
the Militia:
“The President shall be Commander in Chief of
the Army and Navy of the United States, and of
the Militia of the several States, when called into
the actual Service of the United States ….”
U.S. Const. art. II, § 2, cl. 1.
• Compare also art. II, § 3 (instructing the
President to “take Care that the Laws be
faithfully executed”) with art. I, § 8, cl. 15
(authorizing Congress to “call[] forth the Militia to
execute the Laws of the Union”)
The Four “Militia” Powers
• To call forth the militia “to execute the Laws of
the Union, suppress Insurrections, and repel
Invasions.”
• To organize, arm, and discipline the militia
• To govern such part of the militia “as may be
employed in the Service of the United States.”
• To prescribe the discipline by which the states
may exercise their reserved authority to train the
militia.
• See generally Perpich v. Department of
Defense, 496 U.S. 334 (1990).
Consequences of congressional
regulation of the “Militia”
• The Fifth Amendment right to “presentment or indictment
of a Grand Jury” does not apply to “cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger.”
• The Supreme Court has held that the Sixth Amendment
right to jury trial is limited to “those persons who [are]
subject to indictment or presentment in the fifth.” Ex
parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).
• The interplay of Perpich and the militia clauses with
Milligan and the Bill of Rights suggests a channel by
which Printz v. United States, 521 U.S. 898 (1997) can
and arguably should be overruled.
• Ave Caesar, Plena Potentia. Ecco Ancilia Legibus.
The 14th Amendment’s Impact on
the 2d Amendment’s Citizen-Militia
• Amar and others argue over the purported
incorporation of the Second Amendment
through different portions of § 1 of the
Fourteenth Amendment
• This ahistorical obsession with § 1 of the
Fourteenth Amendment ignores what that
provision’s framers really cared about:
sections 2, 3, and 4
The Fourteenth Amendment
Punishes “Insurrection”
•
•
•
Section 2: “[W]hen the right to vote at any election for the choice of
electors for President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial officers of a State,
or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, …, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein
shall be reduced ….”
Section 3: “No person shall be a Senator or Representative in Congress,
or elector of President and Vice-President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken
an oath, as a member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof.”
Section 4: “[N]either the United States nor any State shall assume or pay
any debt or obligation incurred in aid of insurrection or rebellion against the
United States ….”
Sections 2, 3, and 4 Should Be
Read as Though They Still Matter
• Our Constitution creates “a covenant running from the
first generation of Americans to us and then to future
generations.” Planned Parenthood v. Casey, 505 U.S.
833, 901 (1992).
• Our Constitution is “intended to endure for ages to
come,” across “the various crises of human affairs.”
MCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415
(1819).
• Implied repeals are disfavored in constitutional law even
more so than in statutory interpretation, but does anyone
doubt that the Nineteenth Amendment implicitly repeals
the reference in section 2 of the Fourteenth Amendment
to a presumptively male electorate?
The Implied Repeal of the Second
Amendment by the Fourteenth
• The citizen-militia framework of the Second Amendment does not
work within a Fourteenth Amendment that thrice punishes “rebellion”
and/or “insurrection”
• The Civil War and the adoption of the Fourteenth Amendment
restore the Militia’s charge to “suppress Insurrections and repel
Invasions,” art. I, § 8, cl. 15, over any contrary suggestion implicit in
the Second Amendment’s right to bear arms
• Among the lessons of the “constitutional moment” of the Civil War is
a reversal of the founding era’s fear of standing armies. Heavily
armed, insurrection-minded members of the “people” pose a more
credible threat to the integrity of the United States
• The upshot? The Grand Army of the Republic didn’t get wasted at
Shiloh so that insurrection-minded rebels might once again bear
arms against the people and government of the United States
Thank You
• For further information on my views on the
Second Amendment, see Gil Grantmore,
The Phages of American Law, 36 U.C.
Davis L. Rev. 455 (2003) (pseudonymous
work)
• Phages can be downloaded on SSRN at
http://papers.ssrn.com/abstract=785524