A few disappointments in Heller

I. PETITIONERS’ ATTEMPT TO EXPLAIN
THE PURPOSE OF THE SECOND AMENDMENT
MISREADS THE HISTORICAL RECORD,
MISTAKES THE RELATIONSHIP
BETWEEN ARMS AND MILITIA DUTY, AND
IMPROPERLY APPLIES THE VERY INTERPRETATIVE
PRINCIPLE IT INVOKES.

A. The One Certainty in the Historical Record
is that Madison and the First Congress
did not Intend to Protect the
Power of States to Arm the Militia if
Congress Failed to Do So.

Petitioners’ position is that the Framers intended
the Second Amendment to protect only possession of
arms in connection with a well-regulated, i.e., government-
organized, militia.
This presents us with an anomaly: an “individual
right” that exists only if the government implements
it by statute. Indeed, Petitioners argue that Respondent
is himself outside the protection of the Second
Amendment, because he is outside the Federal militia
age range. Petitioners’ Brief at 14 n. 2. Apparently
this is a constitutional safeguard void where prohibited
by law, indeed void unless authorized by law.
Why would the Framers have created so peculiar and
empty a “right of the people”?
Petitioners have an answer. “The fear that the
Militia Clauses give Congress exclusive power to arm
the militias, and thus the power to ‘disarm’ them, by
failing to provide arms, engendered particularly
contentious debates at the Virginia ratifying convention.”
Petitioners’ Brief at 24. “The Amendment was
a response to related fears raised by opponents of
the Constitution: that Congress would use its powers
under the Militia Clauses to disarm the state militias
... ” Id. at 22. “[S]eeing a problem – the possibility
of disarmed state militias – the Framers acted to
address it.” Id. at 33.
If there is one historical certainty to be had, it is
that neither James Madison, nor the First Congress,
had such an intent.

1. In Drafting the Bill of Rights, Madison
Discarded Proposals to Provide
for State Arming of the Militia.

In preparing his draft, although aware of the
others, Madison worked primarily from the Virginia
demands. The Virginia request had two parts. The
first was a “declaration or bill of rights,” setting out
“the essential and unalienable rights of the people.”
This included:
17th. That the people have a right to keep
and bear arms; that 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; ....
3 ELLIOT’S DEBATES 659. The second was a series of
proposed “Amendments to the Body of the Constitution,”
relating to intergovernmental distribution of
power rather than to individual rights. These included:
11th. That each state respectively shall
have the power to provide for organizing,
arming, and disciplining its own militia,
whensoever Congress shall omit or neglect to
provide for the same. That the Militia shall
not be subject to Martial law, except when in
actual service in time of war, invasion, or rebellion....
Id. at 660.4 Madison had Virginia’s language before
him when he began. If Congressional neglect to arm
the militia was his concern, he would have chosen the
first sentence of the 11th Virginia proposal – not the
bill of rights provision declaring a right of the people
to keep and bear arms. He certainly took account of
the second sentence of Virginia’s 11th proposal, and
incorporated its essence into his draft of the future
Fifth Amendment.

2. The First Congress Considered, and
Voted Down, a Motion to Add Virginia’s
Militia-Arming Proposal to
the Bill of Rights

The First Senate considered – and rejected – a
motion to attach language identical to Virginia and
North Carolina’s 11th proposal:

"On motion, To add the following clause
to the Articles of Amendment to the Constitution
of the United States, proposed by the
House of Representatives, to wit:
‘That each State respectively shall have
the power to provide for organizing, arming,
and disciplining its own militia, whensoever
Congress shall omit or neglect to provide for
the same, That the militia shall not be subject
to martial law, except when in actual
service, in time of war, invasion or rebellion,
and when not in the actual service of the
United States, shall be subject only to such
fines, penalties and punishments, as shall be
directed or inflicted by the laws of its own
state.’

It passed in the Negative."

JOURNAL OF THE FIRST SENATE OF THE UNITED STATES
at 75.

Petititoners do address this vote -- in a footnote.
Petitioners’ Brief at 29 n. 6 first argues that this
proposal “went much farther than the Second
Amendment.” This hardly explains why the Senate
voted it down entirely, and why Madison failed to
make use of its first sentence, when he borrowed from
the second one.
Petitioners next argue the motion might have
provoked disputes as to whether the Congress had
failed to discipline the militia. Yet (1) Petitioners’ own
explanation of intent assumes that this concern
existed and (2) the argument ignores that Congress
had only existed for three months.
Petitioners finally submit that it might have
been thought redundant with the Second Amendment.
This is circular reasoning, and contradicted by
the historical record.7 The rejected language clearly
expressed the alleged purpose, and the accepted
language did not. It cannot moreover explain why
Madison rejected the language at the very beginning
of the drafting process, and instead chose to recognize
a “right of the people.”

3. The First Congress Considered Militia
Armament a Key Federal Power,
and Rejected Attempts to Allow
States to Provide or to Require it.

There is additional direct evidence that the First
Congress was not driven by the intent that Petitioners
project upon it: Congress intended to directly
control arming the militia. When, in its third session,
the First Congress considered a militia bill, Rep.
Fitzsimmons moved to replace the requirement that a
militiaman “provide himself” with arms with the
proviso he “shall be provided” with them.
Madison and five others objected, with the record
reflecting: “It was said it would be destructive of the
bill, as it would leave it optional with the States, or
individuals, whether the militia should be armed or
not. This motion was lost by a great majority.” 1
ANNALS OF CONGRESS 1855-56.8 This vote came a year
after the same Congress approved the Bill of Rights.
Petitioners’ explanation of the Framers’ intent
fails when tested against the legislative history. And
this failure leads to the collapse of Petitioners’ entire
interpretative effort.
As Judge Cooley aptly noted a century ago, “if the
right were limited to those enrolled [in the militia]
the purpose of the guarantee might be defeated
altogether by the action or neglect to act of the government
it was meant to hold in check.” THOMAS
COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW
298-99 (3d ed. 1898). Why would the Framers have
labored to create an empty “right of the people,”
protecting only those named by statute, and thus
entirely useless as a check on government?

B. Petitioners’ Position Mistakes the Relationship
Between Militia Organization
and Arms: the Framing Generation Had
Unorganized Militiamen, and Required
Them to Keep Arms.

It is critical to realize that “unorganized militias”
are not a modern concept, and that arms ownership
requirements were not coextensive with membership
in the organized militia.
Pre-1787 laws frequently exempted from training
and muster government officials and key occupations
such as ferrymen, merchant sailors, millers, and
lawyers, but provided no such exception from their
duty to procure arms. See Robert A. Churchill, Gun
Regulation, the Police Power, and the Right to Bear
Arms in Early America, 25 L. & HISTORY REV. 139,
145, 148, 166 (2007); LAWS OF THE GOVERNMENT OF
NEW-CASTLE, KENT AND SUSSEX UPON DELAWARE 171-
77 (Philadelphia 1741). Conversely, female householders
were sometimes obligated to own militia arms
for militia members in their household (e.g., sons or
servants). 1 WILLIAM HAND BROWNE, ED., ARCHIVES OF
MARYLAND 77 (1885).
The former concept was carried over into the
1792 Militia Act, whose first section required all ablebodied
white males 18-45 to be armed, while its
second section exempted from “militia duty” government
officials, ferrymen and mariners, and any other
persons whom a State chose to exempt. 1 Stat. 271-
72. The requirement of arms ownership extended
beyond those who were subject to militia duty; nor is
there any reason to question that the right to arms
was seen as similarly extensive.