I am a fan of “The American View,” hosted by John Lofton, who recently announced on the show an e-mail spat he was having with a University of Maryland (Baltimore Campus) assistant professor of political science. Said professor had taken the discussion public in a web article, and Mr. Lofton posted his reply. While no doubt hours could be spent on dissecting the disagreements, one particular point stood out to me in Prof. Schaller’s post:
Fifth, if you want to be a strict constructionist, fine, but be one even when it’s inconvenient. Imagine if the Second Amendment read as follows: “A woman’s ability to survive childbearing being necessary to a free state, the right to abort a fetus shall not be infringed.” Now, do you think the anti-choice movement would simply ignore the leading clause and resign themselves to the idea that a woman has an unconditional right to abortion? Not a chance, and they’d be right to fight because the language clearly implies a conditional right. And yet we almost never hear gun rights advocates mention the actual Second Amendment’s leading clause, “A well regulated militia being necessary to the security of a free state….,” which at least suggests a collective right—indeed, obligation—to an armed defense of the state, rather than an individual’s right to use arms to protect himself and his property. For the record, I support gun rights with some restrictions, but that’s besides my point, which is that you can’t be so selective in citing the language in the Constitution that you chop off inconveniently ambiguous parts of the same sentence upon which you base a categorical claim.
Something that seems to always get lost in the discussion about the leading clause of the second amendment (when it is brought up by those who wish to infringe on the right of the people to keep and bear arms) is the grammatical structure of the sentence. (A similar mistake is made in discussions about the “general welfare” clauses; see below.) The sentence is structured as “A, therefore B,” with the “therefore” being implicit. A being “A well regulated Militia, being necessary to the security of a free State”, therefore B: “the right of the people to keep and bear Arms, shall not be infringed.”
Professor Schaller comes very close to getting it right: ““A well regulated militia being necessary to the security of a free state….,”… at least suggests a collective right—indeed, obligation—to an armed defense of the state, rather than an individual’s right to use arms to protect himself and his property.” While he captures some of the logic of the leading clause, namely that for the militia to be able to defend the community/state/confederation, the citizenry must be armed, he fails to recognize that the core clause (“the right of the people to keep and bear Arms, shall not be infringed”) is not diminished by this fact, but rather strengthened. After all, by the logic of the amendment, the strength of the militia is in the arms kept and borne by the people, ergo any diminution of said arms is a diminution of the strength of the militia and would thus be detrimental to the whole community/state/confederation and must be proscribed to the civil government. It appears, without knowing the professor further, that he is solely identifying his idea of a militia with that structure that has come to be known as the National Guard, rather than the armed citizenry united in common defense.
The logic borne out by the professor’s argument, to wit, that citing the rationale for a restriction or power of government is to empower the rationale as a separate restriction of power, is also seen in arguments regarding the general welfare clauses of the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [Preamble]
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Article 1, Section 8]
The first case of a general welfare clause occurs in the Preamble, and clearly generates no additional powers, as it is purely an argument as to why the Constitution is called for at all (that is to say “To promote the general welfare, we wrote this Constitution”). The second is more difficult, as it is written in such a way as to superficially appear as a distinct power. However, it falls under the first power of Article 1, Section 8, which is the power of taxation. It, and the common defense and debt clauses which precede it, are limitations on the use of taxation, the details of which are laid out in the powers which follow. In short, since “common defence and general welfare” are used identically in the clause, if “general welfare” is distinct from all authority that follows, then “common defence” is distinct as well from those that follow, and Congress’s power to provide for the common defence would then be distinct from its powers to “raise and support armies” and to “provide and maintain a Navy,” which is absurd on its face. The power to fund the military is the means of providing for the common defense, which necessitates the power to tax for the common defense in the taxation power. Similarly, the powers to coin money, to establish post offices, to grant patents and copyrights, etc. are the means of providing for the general welfare, which necessitates the inclusion of the power to tax for the general welfare in the taxation power.
Furthermore, it is essential to note that even if the second general welfare clause were to generate a new power (which it does not), it would still only be applicable to the “general welfare,” which is to say the welfare of all of the nation and all in the nation equally.
Lastly, Prof. Schaller suggests a hypothetical alternative 2nd amendment dealing with prenatal infanticide (“abortion”) rather than the right of self-defense, suggesting that constitutional originalists would interpret said alternative amendment differently than the actual amendment. I would disagree, although our conclusions would likely work out the same. Whereas “gun control” advocates seek to infringe on the right of the people to keep and bear arms by passing laws in direct contradiction to the wording of the amendment and seeking a court to pretend that it’s not in direct contradiction to the amendment, I would see constitutional originalists who would want to get past the hypothetical 2nd amendment doing so via the constitutionally prescribed method–that is, by a new amendment to eliminate such a heinous concept from the constitution.